EXHIBIT 10.31
TRITON EXPLORATION SERVICES, INC.
401(K) SAVINGS PLAN
AS AMENDED AND RESTATED
EFFECTIVE
JUNE 1, 2000
PREAMBLE
The purpose of this Plan and Trust is to provide, in accordance with its
provisions, a defined contribution plan providing retirement and other related
benefits for those Employees of the Employer who are eligible to participate
hereunder.
It is intended that the Plan qualify for approval under Internal Revenue Code
Section 401(a). It is intended that the Trust be exempt from taxation under
Code Section 501(a). It is further intended that the Plan comply with the
provisions of the Employee Retirement Income Security Act of 1974 (ERISA).
This Plan and Trust is exclusively for the benefit of the eligible Employees and
their Beneficiaries.
This document is a complete amendment and restatement of the Triton Exploration
Services, Inc. 401(k) Savings Plan which was established effective May 31, 1976
as the Triton Energy Corporation Employee Stock Ownership Plan, was restated
effective January 1, 1994 as the Triton Energy Corporation 401(k) Savings Plan,
and was renamed, effective January 1, 1997, to be the Triton Exploration
Services, Inc. 401(k) Savings Plan.
The undersigned Plan Sponsor hereby adopts this amendment and restatement to be
effective June 1, 2000, except as specified elsewhere in this document or as
required to have an earlier effective date by applicable statute and/or
regulation.
The provisions of the Plan, as amended and restated, will apply solely to an
Employee who is an Active Employee on or after the restated Effective Date. If
an Employee terminates employment with the Employer prior to the restated
Effective Date, that Employee will be entitled to benefits under the terms of
the Plan that were in effect as of the date the Employee terminated employment
with the Employer.
CONTENTS
ARTICLE 1 DEFINITIONS 1-1
ARTICLE 2 ELIGIBILITY TO PARTICIPATE 2-1
ARTICLE 3 PARTICIPANT ACCOUNTS 3-1
ARTICLE 4 ACCOUNTING AND VALUATION 4-1
ARTICLE 5 IN-SERVICE WITHDRAWALS 5-1
ARTICLE 6 PARTICIPANT LOANS 6-1
ARTICLE 7 PAYMENT OF BENEFITS 7-1
ARTICLE 8 MISCELLANEOUS . 8-1
ARTICLE 9 ADMINISTRATION 9-1
ARTICLE 10 LIMITATION ON CONTRIBUTIONS . 10-1
ARTICLE 11 NONDISCRIMINATION PROVISIONS 11-1
ARTICLE 12 TOP-HEAVY PROVISIONS 12-1
ARTICLE 13 TRUSTEE AND TRUST FUND 13-1
ARTICLE 1
DEFINITIONS
As used in this document, unless otherwise defined or required by the context,
the following terms have the meanings set forth in this Article 1. Some of the
terms used in this document are not defined in Article 1, but for convenience
are defined as they are introduced in the text.
1.01 ACCOUNT
Account means a separate account maintained for each Participant reflecting
applicable contributions, applicable forfeitures, investment income or loss
allocated to the account, and distributions.
1.02 ACCRUED BENEFIT
A Participant's Accrued Benefit means the total value of his Account(s).
A Participant's Vested Accrued Benefit is equal to his Vested Percentage of that
portion of his Accrued Benefit that is subject to the Vesting Schedule plus 100%
of the remaining portion of his Accrued Benefit.
1.03 BENEFICIARY
Beneficiary means the person, persons, trust or other entity who is designated
to receive any amount payable upon the death of a Participant.
1.04 CODE
Code means the Internal Revenue Code of 1986, as it may be amended from time to
time, and all regulations issued thereunder. Reference to a section of the Code
includes that section and any comparable section or sections of any future
legislation that amends, supplements or supersedes such section and any
regulations issued thereunder.
1.05 COMPENSATION
Except where otherwise specifically provided in this Plan, Compensation means a
Participant's earned income, wages, salaries, and fees for professional
services, and other amounts received for personal services actually rendered in
the course of employment with the Employer, excluding the following:
(a) Compensation classified by the Employer as severance pay.
(b) Employer contributions to a plan of deferred compensation which are not
included in the Employee's gross income for the taxable year in which
contributed or employer contributions under a simplified employee pension plan
to the extent the contributions are deductible by the Employee, or any
distributions from a plan of deferred compensation;
(c) Amounts realized from the exercise of a nonqualified stock option, or
when restricted stock (or property) held by the Employee either becomes freely
transferable or is no longer subject to a substantial risk of forfeiture;
(d) Amounts realized from the sale, exchange or other disposition of stock
acquired under a qualified stock option; and
(e) Other amounts which received special tax benefits, or contributions made
by the Employer (whether or not under a salary reduction agreement) toward the
purchase of an annuity described in Code Section 403(b) (whether or not the
amounts are actually excludable from the gross income of the Employee).
Notwithstanding the foregoing, compensation also includes any amounts
contributed by the Employer on behalf of any Employee pursuant to a salary
reduction agreement which are not includable in the gross income of the Employee
due to Code Sections 125, 402(e)(3), 402(h), 402(k) or 403(b).
For purposes of calculating contributions to the Plan pursuant to Article 3, the
period used to determine an Employee's Compensation for a Plan Year will be
limited to that portion of the Plan Year in which the Employee was a Participant
in the Plan.
For purposes of testing for compliance with the nondiscrimination in
contributions requirements of Code Section 401(a)(4) and the minimum coverage
requirements of Code Section 410(b), the period used to determine an Employee's
Compensation for a Plan Year may be limited to that portion of the Plan Year in
which the Employee was a Participant in the Plan, provided that, for such
purpose, this method is applied uniformly to all Eligible Employees under the
Plan for the Plan Year.
Notwithstanding the foregoing, the period used to determine an Employee's
Compensation is defined in Section 10.03(c) for purposes of computing Annual
Additions under Code Section 415; in Section 11.02(b)(3) for purposes of
nondiscrimination testing under Code Sections 401(k) and 401(m); in Section
11.01(a) for purposes of determining who is a Highly Compensated Employee; and
in Section 12.01(d) for purposes of determining who is a Key Employee.
Notwithstanding the foregoing, for all purposes under this Plan, Compensation in
excess of the Statutory Compensation Limit will be disregarded. Statutory
Compensation Limit means $170,000 (for Plan Years beginning in 2000), as
adjusted in subsequent years in accordance with Code Section 401(a)(17)(B).
1.06 EFFECTIVE DATE
The Effective Date of the Plan is May 31, 1976.
Except as otherwise specified in this document or as required to have an earlier
effective date by applicable statute and/or regulations, the effective date of
this restatement of the Plan is June 1, 2000. Sections 1.11 and 2.01 are
effective January 1, 2000.
1.07 ELIGIBLE EMPLOYEE CLASSIFICATION
An Eligible Employee Classification is a classification of Employees, the
members of which are eligible to participate in the Plan. The Plan covers all
employee classifications except Leased Employees, workers classified by the
Employer as Independent Contractors, Employees classified by the Employer as
Temporary Employees, Interns, and Employees whose terms of employment are
governed by a collective bargaining agreement (unless such agreement provides
for coverage under the Plan). A Temporary Employee is an Employee who is
expected to work less than 12 months for the Employer.
Leased Employees and individuals who are classified by the Employer as
independent contractors or other non-common law employees are not eligible to
participate in the Plan whether or not such individuals are classified as
Employees for purposes of the Internal Revenue Code or Title I of ERISA.
1.08 EMPLOYEE
(a) IN GENERAL
Unless otherwise specified, an Employee is any person who is employed by the
Employer, a Related Employer or a Participating Employer.
(b) LEASED EMPLOYEE
Effective on the later of the Effective Date of the Plan or the first day of the
first Plan Year beginning after December 31, 1996, a Leased Employee means any
person who, pursuant to an agreement between the Employer or any Related
Employer ("Recipient Employer") and any other person ("leasing organization"),
has performed services for the Recipient Employer on a substantially full-time
basis for a period of at least one year and such services are performed under
the primary direction or control of the Recipient Employer.
Any Leased Employee will be treated as an Employee of the Recipient Employer;
however, contributions or benefits provided by the leasing organization which
are attributable to the services performed for the Recipient Employer will be
treated as provided by the Recipient Employer. If all Leased Employees
constitute less than 20% of the Employer's non-highly-compensated work force
within the meaning of Code Section 414(n)(1)(C)(ii), then the preceding sentence
will not apply to any Leased Employee if such Employee is covered by a money
purchase pension plan which provides: (1) a nonintegrated Employer contribution
rate of at least 10% of compensation, (2) immediate participation, and (3) full
and immediate vesting (a "Safe Harbor Plan").
Years of Service include service by an Employee as a Leased Employee.
1.09 EMPLOYER
(a) EMPLOYER
Unless otherwise specified, the term, Employer, includes the Plan Sponsor,
any Related Employer and any Participating Employer.
(b) PARTICIPATING EMPLOYER
A Participating Employer is any organization which has adopted this Plan
and Trust in accordance with Section 8.10.
(c) PREDECESSOR EMPLOYER
Predecessor Employer means any prior employer to which the Employer is the
successor, including any Predecessor Employer for which the Employer maintains
the obligations of a Predecessor Plan established by the Predecessor Employer.
Service with a Predecessor Employer will be included as Service with the
Employer for all purposes under this Plan.
Any prior employer listed as a Predecessor Employer in an Appendix to this Plan
will be regarded as a Predecessor Employer for purposes of this Plan.
(D) RELATED EMPLOYER
The term Related Employer means any other corporation, association, company or
entity on or after the Effective Date which is, along with the Plan Sponsor, a
member of a controlled group of corporations (as defined in Code Section
414(b)), a group of trades or businesses which are under common control (as
defined in Code Section 414(c)), an affiliated service group (as defined in Code
Section 414(m)), or any organization or arrangement required to be aggregated
with the Plan Sponsor by Treasury Regulations issued under Code Section 414(o).
1.10 EMPLOYMENT COMMENCEMENT DATE
The date an Employee first is credited with an Hour of Service for the Employer
is his Employment Commencement Date.
1.11 ENTRY DATE
Entry Date means an Employee's Employment Commencement Date.
1.12 ERISA
ERISA means Public Law No. 93-406, the Employee Retirement Income Security Act
of 1974, as it may be amended from time to time, and all regulations issued
thereunder. Reference to a section of ERISA includes that section and any
comparable section or sections of any future legislation that amends,
supplements or supersedes such section and any regulations issued thereunder.
1.13 FISCAL YEAR
Fiscal Year means the taxable year of the Plan Sponsor. The Fiscal Year of the
Plan Sponsor is the 12 month period beginning June 1 and ending May 31.
1.14 FORFEITURE
Forfeiture refers to that portion, if any, of a Participant's Accrued Benefit
which is in excess of his Vested Accrued Benefit following the termination of
the Participant's employment.
A Forfeiture is considered to occur as of the earlier of (a) the date of the
occurrence of the fifth of 5 consecutive One Year Breaks-in-Service or (b) the
date a Cash-Out Distribution occurs in accordance with the provisions of Section
7.06(b).
1.15 HOUR OF SERVICE
An Hour of Service means:
(a) Each hour for which an Employee is paid, or entitled to payment, for the
performance of duties for the Employer. These hours will be credited to the
Employee for the computation period in which the duties are performed;
(b) Each hour for which an Employee is paid, or entitled to payment, by the
Employer on account of a period of time during which no duties are performed
(irrespective of whether the employment relationship has terminated) due to
vacation, holiday, illness, incapacity (including Disability), layoff, jury
duty, qualified military service or leave of absence. No more than 501 Hours of
Service will be credited under this paragraph for any 12-month period. Hours
under this paragraph will be calculated and credited pursuant to Section
2530.200b-2 of the Department of Labor Regulations which are incorporated herein
by this reference; and
(c) Each hour for which back pay, irrespective of mitigation of damages, is
either awarded or agreed to by the Employer. The same Hours of Service will not
be credited both under paragraphs (a) or (b), as the case may be, and under this
paragraph (c). These hours will be credited to the Employee for the computation
period or periods to which the award or agreement pertains rather than the
computation period in which the award, agreement or payment is made.
Hours of Service for all Employees will be determined on the basis of actual
hours for which an Employee is paid or is entitled to payment. Hours of Service
will be credited for employment with any Related Employer or any Predecessor
Employer. Hours of Service will be credited for any individual considered an
employee under Code Section 414(m) or 414(n) and the regulations thereunder.
Solely for purposes of determining whether a One Year Break-in-Service has
occurred, a Participant who is absent from work on an authorized Leave of
Absence or by reason of the Participant's pregnancy, birth of the Participant's
child, placement of a child with the Participant in connection with the adoption
of such child, or for the purpose of caring for such child for a period
immediately following such birth or placement, will receive credit for the Hours
of Service which otherwise would have been credited to the Participant but for
such absence. The Hours of Service credited under this paragraph will be
credited in the Plan Year in which the absence begins if such crediting is
necessary to prevent a One Year Break-in-Service in such Plan Year; otherwise,
such Hours of Service will be credited in the following Plan Year. The Hours of
Service credited under this paragraph are those which would normally have been
credited but for such absence. In any case in which the Plan Administrator is
unable to determine such hours normally credited, 8 Hours of Service per day
will be credited. No more than 501 Hours of Service will be credited under this
paragraph for any 12-month period.
The Date of Severance is the second anniversary of the date on which the absence
begins. The period between the initial date of absence and the first
anniversary of the initial date of absence is deemed to be a period of Service.
The period between the first and second anniversaries of the initial date of
absence is neither a period of service nor a period of severance.
1.16 LEAVE OF ABSENCE
An authorized Leave of Absence means a period of time of one year or less
granted to an Employee by the Employer due to illness, injury, temporary
reduction in work force, or other appropriate cause or due to military service
during which the Employee's reemployment rights are protected by law, provided
the Employee returns to the service of the Employer on or before the expiration
of such leave, or in the case of military service, within the time his
reemployment rights are so protected or within 60 days of his discharge from
military service if no federal law is applicable. All authorized Leaves of
Absence are granted or denied by the Employer in a uniform and nondiscriminatory
manner, treating Employees in similar circumstances in a like manner.
If the Participant does not return to active service with the Employer on or
prior to the expiration of his authorized Leave of Absence he will be considered
to have had a Date of Severance as of the earlier of the date on which his
authorized Leave of Absence expired, the first anniversary of the last date he
worked at least one hour as an Active Participant, or the date on which he
resigned or was discharged.
1.17 NORMAL RETIREMENT AGE AND NORMAL RETIREMENT DATE
A Participant's Normal Retirement Age is age 65.
A Participant's Normal Retirement Date is the date on which the Participant
attains Normal Retirement Age.
1.18 ONE YEAR BREAK-IN-SERVICE
One Year Break-in-Service is defined in Section 1.30.
1.19 PARTICIPANT
Participant means an Employee or former Employee who is eligible to participate
in this Plan and who is or who may become eligible to receive a benefit of any
type from this Plan or whose Beneficiary may be eligible to receive any such
benefit.
(a) ACTIVE PARTICIPANT
Active Participant means a Participant who is currently an Employee in an
Eligible Employee Classification.
(B) DISABLED PARTICIPANT
Disabled Participant means a Participant who has terminated his employment with
the Employer due to his Disability and who is receiving or is entitled to
receive benefits from the Plan.
(C) RETIRED PARTICIPANT
Retired Participant means a Participant who has terminated his employment with
the Employer after meeting the requirements for his Normal Retirement Date and
who is receiving or is entitled to receive benefits from the Plan.
(D) VESTED TERMINATED PARTICIPANT
Vested Terminated Participant means a Participant who has terminated his
employment with the Employer and all Related Employers, who has a
non-forfeitable right to all or a portion of his or her Accrued Benefit and who
has not received a distribution of the value of his or her Vested Accrued
Benefit.
(E) INACTIVE PARTICIPANT
Inactive Participant means a Participant who has (i) interrupted his status as
an Active Participant without becoming a Disabled, Retired or Vested Terminated
Participant and (ii) has a non-forfeitable right to all or a portion of his
Accrued Benefit and has not received a complete distribution of his benefit.
(F) FORMER PARTICIPANT
Former Participant means a Participant who has terminated his employment with
the Employer and who currently has no non-forfeitable right to any portion of
his or her Accrued Benefit.
1.20 PAYROLL WITHHOLDING AGREEMENT
Payroll Withholding Agreement means an affirmative election by a Participant
directing the Employer to withhold, each payroll period, a whole percentage of
his Compensation (or such other amount as allowed by the Plan Administrator) and
to contribute such withheld amount to the Plan pursuant to the provisions of
Article 3.
If a Payroll Withholding Agreement is required pursuant to the provisions of
Article 3, then each Participant who elects to participate in the Plan will
enter into such agreement on or before the first day of the payroll period for
which the agreement is applicable (or at some other time as specified by the
Plan Administrator). Such agreement will be effective for each payroll period
thereafter until modified or amended.
Payroll Withholding Agreements will be governed by the following general
guidelines:
(a) The Plan Administrator will establish and apply guidelines concerning
the frequency and timing of amendments or changes to Payroll Withholding
Agreements. Notwithstanding the foregoing, a Participant may revoke his Payroll
Withholding Agreement at any time and discontinue all future withholding.
(b) The Plan Administrator may amend or revoke its Payroll Withholding
Agreement with any Participant at any time if the Plan Administrator determines
that such revocation or amendment is necessary to insure that a Participant's
Annual Additions for any Plan Year will not exceed the limitations of Article
10, or to insure that the requirements of Code Sections 401(k) and 401(m) of the
Code have been satisfied with respect to the amount which may be withheld and
contributed on behalf of the Highly Compensated Group.
1.21 PLAN, PLAN AND TRUST, TRUST
The terms Plan, Plan and Trust and Trust mean Triton Exploration Services, Inc.
401(k) Savings Plan. The Plan Identification Number is 001. Pursuant to Code
Section 401(a)(27), the Plan is designated a profit sharing plan.
The term Predecessor Plan means any qualified plan previously established and
maintained by the Employer and to which this Plan is the successor.
1.22 PLAN ADMINISTRATOR
The Plan Administrator is Triton Exploration Services, Inc. or the person or
persons appointed to serve as Plan Administrator pursuant to Section 9.01.
1.23 PLAN SPONSOR
Triton Exploration Services, Inc. is the Plan Sponsor.
1.24 PLAN YEAR
The Plan Year is the 12 month period beginning January 1 and ending December 31.
The Limitation Year coincides with the Plan Year.
1.25 TRUST FUND, TRUST
These terms mean the total cash, securities, real property, insurance contracts
and any other property held by the Trustee.
1.26 TRUSTEE
The Trustee is The Charles Schwab Trust Company or any successor Trustee.
1.27 VALUATION DATE
Valuation Date, unless otherwise specified, means any business day on which
the New York Stock Exchange is open.
1.28 VESTED PAERCENTAGE AND VESTING SCHEDULE
A Participant's Vested Percentage as of a given date will be that percentage
determined in accordance with the following Vesting Schedule. Notwithstanding
the preceding, an Active Participant will be 100% vested upon reaching his
Normal Retirement Age.
YEARS OF SERVICE VESTED PERCENTAGE
Less than 1 Year 0%
1 Years 20%
2 Years 40%
3 Years 60%
4 Years 80%
5 Years or More 100%
Notwithstanding the above, the Vested Percentage of a Participant whose accounts
from a prior plan have been transferred to this Plan pursuant to Section 8.06
will not be less than his vested percentage determined under the provisions of
the prior plan.
Notwithstanding the foregoing, a Participant's Vested Percentage will be 100% if
a 'Change in Control' of Triton Energy Limited ('TEL') occurs. For purposes of
this Section, Change in Control means the occurrence of any of the following
events:
(a) There shall be consummated (1) any consolidation, amalgamation, merger or
other form of business combination of TEL, or to which TEL is a party, in which
(i) TEL is not the continuing or surviving corporation or (ii) where TEL is the
continuing or surviving corporation, TEL's Ordinary Shares would be converted
into cash, securities or other property, or the holders of TEL's Ordinary Shares
immediately prior to the consolidation, amalgamation, merger or other form of
business combination would represent less than a majority of the common stock or
ordinary shares of the surviving corporation immediately after the
consolidation, amalgamation, merger or other form of business combination, or
(2) any sale, lease, exchange or other transfer (excluding transfer by way of
pledge or hypothecation), in one transaction or a series of related
transactions, of all, or substantially all, of the assets of TEL;
(b) The shareholders of TEL approve any plan or proposal for the liquidation
or dissolution of TEL;
(c) Any 'person' (as such term is defined in Section 3(a)(9) or Section
13(d)(3) under the Securities Exchange Act of 1934, as amended (the '1934 Act'))
or any 'group' (as such term is used in Rule 13d-5 promulgated under the 1934
Act), other than TEL or any successor of TEL or any subsidiary of TEL or any
employee benefit plan of TEL or any subsidiary (including such plan's
trustee), becomes, without the prior approval of the Board of Directors of TEL
(the 'Board'), a beneficial owner for purposes of Rule 13d-3 promulgated under
the 1934 Act, directly or indirectly, of securities of TEL representing 25.0% or
more of TEL's then outstanding securities having the right to vote in the
election of Directors of TEL; or
(d) During any period of two consecutive years, individuals who, at the
beginning of such period constituted the entire Board (the 'Incumbent
Directors'), cease for any reason (other than death) to constitute a majority
of the Directors of TEL, unless the election, or the nomination for election,
by TEL's shareholders, of each new Director of TEL was approved by a vote
of at least two-thirds of the Incumbent Directors (so long as such new Director
was not nominated by a person who expressed an intent to effect a change in
control of TEL or engage in a proxy or other control contest) in which case
such new Director shall be considered an Incumbent Director.
1.29 WRITTEN RESOLUTION
The terms Written Resolution and Written Consent are used interchangeably and
reflect decisions, authorizations, etc. by the Plan Sponsor. A Written
Resolution or Written Consent will be evidenced by a resolution or a unanimous
written consent of the Board of Directors of the Plan Sponsor, by the written
consent of an officer of the Plan Sponsor who has been authorized to provide
such consent by the Board of Directors, or by the written consent of a committee
of the Employer which has been authorized to provide such consent by the Board
of Directors.
1.30 YEAR OF SERVICE
(a) YEAR OF VESTING SERVICE
Years of Service for purposes of computing a Participant's Vested Percentage are
referred to as Years of Vesting Service and are based upon an Employee's Elapsed
Time of employment irrespective of the number of hours actually worked during
such Elapsed Time; a Year of Vesting Service (including a fraction thereof) will
be credited for each completed 365 days of Elapsed Time which need not be
consecutive. All periods of employment will be aggregated including Periods of
Severance of less than 365 days.
Years of Vesting Service for purposes of determining a Participant's Vested
Percentage include service with any organization which is a Related Employer
with respect to the Employer, and service with any other organization that may
be designated in an Appendix to this Plan as an employer for which prior service
credit has been granted by the Plan Sponsor for purposes of determining a
Participant's Vested Percentage.
Years of Vesting Service for purposes of determining the Vested Percentage of a
Participant who is reemployed after a period of Qualified Military Service as
defined in Chapter 43 of Title 38, United States Code, will include the period
of Qualified Military Service.
(b) DETERMINING SERVICE BASED ON ELAPSED TIME
The following rules and terms are used in determining service based on an
Employee's Elapsed Time of employment:
(1) Date of Severance (Termination) - means the earlier of (i) the actual
date an Employee resigns, is discharged, dies or retires, or (ii) the first
anniversary of the date an Employee is absent from work (with or without pay)
for any other reason, e.g., disability, vacation, leave of absence, layoff, etc.
Notwithstanding the foregoing, Date of Severance will mean the date specifically
designated as such in any severance of employment agreement.
(2) Elapsed Time - means the total period of service that has elapsed
between an Employee's Employment Commencement Date and Date of Termination
including Periods of Severance where a One Year Break-in-Service does not occur.
(3) Employment Commencement Date - means the date an Employee first performs
one Hour of Service for the Employer.
(4) One Year Break-in-Service - means any 365-day period following an
Employee's Date of Termination as defined above in which the Employee does not
complete at least one Hour of Service.
(5) Period of Severance - is the time between the actual Date of Severance
as defined above and the subsequent date, if any, on which the Employee performs
an Hour of Service.
(6) Exception for Leaves of Absence due to maternity or paternity reasons.
Notwithstanding the foregoing, if any Employee is absent due to maternity or
paternity reasons (pregnancy or birth of a child of such individual or the
adoption of a child by such individual or for purposes of caring for such child
immediately after birth or adoption) the Date of Severance (Termination) will be
the first anniversary of the date such absence began and if the absence is for a
period of more than 12 months, the 12-month period following the first
anniversary of the date such absence began will not be treated as a period of
Service or a Period of Severance.
(7) Exception for absence due to Qualified Military Service - An individual
who is reemployed by the Employer after a period of Qualified Military Service
as defined in Chapter 43 of Title 38, United States Code and who is entitled to
reemployment rights under Chapter 43, is treated as not having one or more One
Year Breaks-in-Service with the Employer by reason of such individual's period
of Qualified Military Service.
ARTICLE 2
ELIGIBILITY TO PARTICIPATE
2.01 PARTICIPATION
An Employee who is a member of an Eligible Employee Classification will become
eligible to participate in the Plan on his or her Employment Commencement Date.
An Employee who is eligible to participate as of the Effective Date or as of a
given Entry Date will automatically become a Participant as of such date.
2.02 PARTICIPATION AFTER REEMPLOYMENT
An Employee who has satisfied all of the eligibility requirements but terminates
employment prior to his Entry Date will participate in the Plan immediately upon
returning to the employ of the Employer in an Eligible Employee Classification.
A Participant or Former Participant who has terminated employment will
participate as an Active Participant in the Plan immediately upon returning to
the employ of the Employer in an Eligible Employee Classification.
2.03 CHANGE IN EMPLOYMENT CLASSIFICATION
In the event a Participant becomes ineligible to participate because he is no
longer a member of an Eligible Employee Classification, the Participant will
participate immediately upon his return to an Eligible Employee Classification.
In the event an Employee who is not a member of an Eligible Employee
Classification becomes a member of such a classification, such Employee will
begin to participate on the Entry Date that coincides with or next follows the
later of the date he becomes a member of an Eligible Employee Classification or
the date he satisfies the eligibility requirements which are specified in
Section 2.01.
ARTICLE 3
PARTICIPANT ACCOUNTS
3.01 EMPLOYEE ACCOUNT
(a) GENERAL
Employee Account means the Account of a Participant reflecting Employee
contributions, investment income or loss allocated thereto and distributions. A
Participant's Employee Account is 100% vested at all times.
(b) EMPLOYEE CONTRIBUTIONS
(1) AMOUNT OF CONTRIBUTION
Each Participant may elect, pursuant to a Payroll Withholding Agreement, to make
a Employee Contribution not to exceed 15% of the Participant's Compensation.
Such contribution will be designated as a whole percentage of Compensation or
such other amount as allowed by the Plan Administrator.
(2) NONDISCRIMINATION REQUIREMENTS
All Employee Contributions are Elective Contributions within the meaning of
Section 11.02(b)(8) and must satisfy the Nondiscrimination Requirements of
Section 11.02.
(3) EXCESS DEFERRALS
The maximum amount of Employee Contributions which can be made under the Plan on
behalf of any Participant during any calendar year will be limited to that
amount which would not constitute an Excess Deferral as defined in Section
11.02(b)(14).
The Plan Administrator will distribute any Excess Deferral, together with the
income allocable to it, to the Participant no later than April 15 of the
calendar year immediately following the year of the Excess Deferral. If a
Participant notifies the Plan Administrator before March 1 of any calendar year
that Excess Deferrals have been made on his account for the previous calendar
year by reason of participation in a Cash or Deferred Arrangement maintained by
another employer or employers, and if the Participant requests that the Plan
Administrator distribute a specific amount to him on account of Excess Deferrals
and certifies that the requested amount is an Excess Deferral, the Plan
Administrator will designate the amount requested together with the income
allocable to it as a distribution of Excess deferrals and distribute such amount
no later than April 15 of that calendar year.
The amount of Excess Deferrals to be distributed will be reduced by any Excess
Contributions previously distributed or recharacterized with respect to the Plan
Year beginning with or within the calendar year. The amount of income allocable
to the Excess Deferral will be determined as described in Section 11.02(g).
(4) TIMING OF DEPOSITS
The Employer will deposit all Employee Contributions on the earliest date on
which contributions can reasonably be segregated from the Employer's general
assets.
3.02 TRITON MATCHING ACCOUNT
(a) GENERAL
Triton Matching Account means the Account of a Participant reflecting Triton
Matching contributions, forfeitures, investment income or loss allocated thereto
and distributions. A Participant's Triton Matching Account is subject to the
Vesting Schedule.
(b) TRITON MATCHING CONTRIBUTIONS
Each payroll period, the Employer will make a Triton Matching Contribution to
each eligible Participant's Triton Matching Account in an amount determined in
accordance with this Section subject to the limitations of Article 10.
The amount of Triton Matching Contribution to be made to an eligible
Participant's Triton Matching Account is equal to 100% of that portion of the
Participant's Employee Contribution that is not in excess of 6% of the
Participant's Compensation.
(c) SUPPLEMENTAL TRITON MATCHING CONTRIBUTIONS
Each Plan Year, the Employer may, within the time prescribed by law for making a
deductible contribution, make a Supplemental Triton Matching Contribution to the
Plan in an amount which is determined in accordance with this Section subject to
the limitations of Article 10.
Supplemental Triton Matching Contributions will be allocated to the Triton
Matching Accounts of all eligible Participants by the ratio which each eligible
Participant's Triton Matching Contributions for the Plan Year bears to the total
of all eligible Participants' Triton Matching Contributions for the Plan Year.
For a given Plan Year a Participant is eligible to receive an allocation of
Supplemental Triton Matching Contributions if he is employed on the last day of
the Plan Year, or terminates employment during the Plan Year due to retirement,
disability or death.
(d) APPLICATION OF FORFEITURES
Forfeitures from a Participant's Triton Matching Account will be used to pay
Plan expenses or reduce Triton Matching Contributions in the Plan Year in which
the Forfeitures are determined to occur.
3.05 ROLLOVER ACCOUNT
(a) GENERAL
Rollover Account means the Account of a Participant reflecting Rollover
contributions, investment income or loss allocated thereto and distributions. A
Participant's Rollover Account is 100% vested at all times.
(b) ROLLOVER CONTRIBUTION
Rollover Contribution means a contribution to the Plan by a Participant where
such contribution is the result of a prior distribution from an Individual
Retirement Account, an Individual Retirement Annuity or another qualified plan.
Such prior contribution must be a rollover amount described in Code Section
402(c)(4) or a contribution described in Code Section 408(d)(3).
Each Employee who is a member of an Eligible Employee Classification, regardless
of whether he is a Participant in the Plan, will have the right to make a
Rollover Contribution of cash (or other property of a form acceptable to the
Plan Administrator and the Trustee) into the Plan from another qualified plan.
If the Employee is not a Participant hereunder, his Rollover Account will
constitute his entire interest in the Plan.
An Employee who has a balance in his Rollover Account will be eligible to
participate in any in-service withdrawal benefit pertaining to Rollover Accounts
subject to Section 5.02, and may initiate a participant loan from his Rollover
account subject to the provisions of Article 6. In no event will the existence
of a Rollover Account entitle the Employee to participate in any other benefit
provided by the Plan prior to the time when he becomes an Active Participant.
3.06 PRIOR PLAN ACCOUNT
(a) GENERAL
Prior Plan Account means the Account or Accounts of a Participant reflecting
ESOP contributions to the Plan. A Participant's Prior Plan Account is subject
to the Vesting Schedule. The last ESOP Contribution to the Plan was for the
Plan Year Ending May 31, 1993.
(b) APPLICATION OF FORFEITURES
Forfeitures from a Participant's Prior Plan Account will be used to pay Plan
expenses or reduce Triton Matching Contributions in the Plan Year in which the
Forfeitures are determined to occur.
ARTICLE 4
ACCOUNTING AND VALUATION
4.01 GENERAL POWERS OF THE PLAN ADMINISTRATOR
The Plan Administrator will have the power to establish rules and guidelines,
which will be applied on a uniform and non-discriminatory basis, as it deems
necessary, desirable or appropriate with regard to accounting procedures and to
the timing and method of contributions to and/or withdrawals from the Plan.
4.02 DIRECTION OF INVESTMENT
(a) APPLICATION OF THIS SECTION
Subject to the provisions of this Section, each Participant will have the right
to direct the investment of all of his Accounts among the Investment Funds which
are made available by the Plan Administrator.
(b) INVESTMENT FUND
An Investment Fund means any portion of the assets of the Trust Fund that the
Plan Administrator designates as an Investment Fund in a manner and form
acceptable to the Trustee, and for which the Plan Administrator maintains a set
of accounts separate from the remaining assets of the Trust Fund.
(c) GENERAL POWERS OF THE PLAN ADMINISTRATOR
The Plan Administrator will have the power to establish rules and guidelines as
it deems necessary, desirable or appropriate with regard to the directed
investment of contributions in accordance with this Section. Such rules and
guidelines are intended to comply with Section 404(c) of ERISA and the
regulations thereunder. Included in such powers, but not by way of limitation,
are the following powers and rights.
(1) To direct the Trustee to temporarily invest those contributions which
are pending directed investment in an Investment Fund or in some other manner as
determined by the Plan Administrator.
(2) To establish rules with regard to the transfer of all or any part of the
balance of an Account or Accounts of a given Participant from one Investment
Fund to another.
(3) Direct the Trustee to maintain any part of the assets of any Investment
Fund in cash, or in demand or short-term time deposits bearing a reasonable rate
of interest, or in a short-term investment fund that provides for the collective
investment of cash balances or in other cash equivalents having ready
marketability, including, but not limited to, U.S. Treasury Bills, commercial
paper, certificates of deposit, and similar types of short-term securities.
(4) To temporarily suspend the ability of Participants to redirect the
investment of their Accounts during a transfer of assets between trustees or
custodians, during the replacement of funds within the Trust, or at other times
deemed necessary with respect to the administration of the Plan.
Neither the Trustee nor the Plan Administrator will be liable for any loss that
results from a Participant's exercise of control over the investment of the
Participant's Accounts. If the Participant fails to provide adequate
directions, the Plan Administrator will direct the investment of the
Participant's Account.
(d) ACCOUNTING
The Plan Administrator will maintain a set of accounts for each Investment Fund.
The accounts of the Plan Administrator for each Investment Fund will indicate
separately the dollar amounts of all contributions made to such Investment Fund
by or on behalf of each Participant from time to time. The Plan Administrator
will compute the net income from investments; net profits or losses arising from
the sale, exchange, redemption, or other disposition of assets, and the prorata
share attributable to each Investment Fund of the expenses of the administration
of the Plan and Trust and will debit or credit, as the case may be, such income,
profits or losses, and expenses to the unsegregated balance in each Investment
Fund from time to time. To the extent that the expenses of the administration
of the Plan and Trust are not directly attributable to a given Investment Fund,
such expenses, as of a given Valuation Date, will be prorated among each
Investment Fund; such allocation of expenses will, in general, be performed in
accordance with the guidelines which are specified in this Article.
(e) FUTURE CONTRIBUTIONS
Each Participant who chooses to participate in the Plan will elect the
percentage of those contributions which are subject to Participant direction of
investment which is to be deposited to each available Investment Fund. The
timing of such election will be specified by the Plan Administrator. Such
election will remain in effect until modified. If any Participant fails to make
an election by the appropriate date, he will be deemed to have elected an
Investment Fund(s) as determined by the Plan Administrator. Elections will be
limited to whole percentages (or such other reasonable increments as determined
by the Plan Administrator).
(f) CHANGE IN INVESTMENT OF EXISTING BALANCES
A Participant may file an election with the Plan Administrator to shift the
aggregate amount or reasonable increments (as determined by the Plan
Administrator) of the balance of his existing Account or Accounts which are
subject to Participant direction of investment among the various Investment
Funds. Elections will be limited to whole percentages (or such other reasonable
increments as determined by the Plan Administrator).
(g) CHANGES IN INVESTMENT ELECTIONS
Elections with respect to future contributions and/or with respect to changes in
the investment of past contributions will be in writing or through such other
means as may be approved by the Plan Administrator and in a format specified by
the Plan Administrator.
The Plan Administrator may establish additional rules and procedures with
respect to investment election changes including, for example, the number of
allowed changes per specified period, the amount of reasonable fee, if any,
which will be charged to the Participant for making a change, specified dates or
cutoff dates for making a change, etc.
(h) ADDITION AND DELETION OF INVESTMENT FUNDS
Investment Funds may be deleted or added from time to time at the direction of
the Plan Administrator. The Plan Administrator will establish guidelines for
the proper administration of affected Accounts when an Investment Fund is added
or deleted.
4.03 VALUATION PROCEDURE
As of each Valuation Date, the Plan Administrator will determine from the
Trustee the fair market value of each Investment Fund and will, subject to the
provisions of this Article, determine the allocation of such value among the
Accounts of the Participants; in doing so, the Plan Administrator will in the
following order:
(a) Credit or charge, as appropriate, to the proper Accounts all
contributions, payments, transfers, forfeitures, withdrawals or other
distributions made to or from such Accounts since the last preceding Valuation
Date and that have not been previously credited or charged.
(b) Credit or charge, as applicable, each Account with its pro rata portion
of the appreciation or depreciation in the fair market value of each Investment
Fund since the prior Valuation Date. Such appreciation or depreciation will
reflect investment income, realized and unrealized gains and losses, other
investment transactions and expenses paid from each Investment Fund.
ARTICLE 5
IN-SERVICE WITHDRAWALS
5.01 GENERAL
An Active Participant may not withdraw funds from his Accounts except as
permitted in this Section.
5.02 ROLLOVER WITHDRAWALS
Subject to procedures established by the Plan Administrator and the provisions
of Article 7, a Participant may withdraw, at any time, all or any portion of his
Accounts that are attributable to Rollover Contributions.
5.03 AGE 59 1/2 WITHDRAWALS
Subject to procedures established by the Plan Administrator and the provisions
of Article 7, an Active Participant who has attained age 59 1/2 may withdraw all
or any portion of his Employee Account. An Active Participant who has attained
age 59 and has completed five Years of Service may withdraw all or any portion
of any of his vested Accounts. A Participant who has not attained age 59 1/2 may
not withdraw any portion of his Accounts prior to the time when benefits
otherwise become payable in accordance with the provisions of Article 7 except
as provided elsewhere in this Article 5.
5.04 FINANCIAL HARDSHIP WITHDRAWALS
Subject to procedures established by the Plan Administrator and the provisions
of Article 7, an Active Participant may file with the Plan Administrator a
request to withdraw from his Employee Contribution Account, in order to avoid or
alleviate a Financial Hardship, an amount necessary to satisfy the Participant's
immediate and heavy financial need. A Participant who has completed five Years
of Service may request a Financial Hardship Withdrawal from his Triton Matching
Account and from his Prior Plan Account.
(a) LIMITS ON THE AMOUNT OF A FINANCIAL HARDSHIP WITHDRAWAL
A Financial Hardship Withdrawal from a Participant's Employee Account may not
exceed that portion of his Employee Account which represents his total Employee
Contributions.
A Financial Hardship Withdrawal from a Participant's Triton Matching Account and
Prior Plan Account may equal up to 100% of the Participant's Accrued Benefit in
each Account.
(b) DEFINITION OF FINANCIAL HARDSHIP
The Plan Administrator will allow Financial Hardship withdrawals only if they
are necessary to satisfy a Participant's immediate and heavy financial need.
(c) IMMEDIATE AND HEAVY FINANCIAL NEED
A withdrawal will be deemed to be made due to an immediate and heavy financial
need of the Participant if it is made because of:
(1) Expenses for medical care described in Code Section 213(d) previously
incurred by the Participant, his spouse or any of his dependents (as defined in
Code Section 152) or necessary for these persons to obtain medical care
described in Code Section 213(d);
(2) Costs directly related to the purchase (excluding mortgage payments) of
a principal residence for the Participant;
(3) Payment of tuition, room and board or educational fees for the next 12
months of post-secondary education for the Participant, his spouse, children or
dependents (as defined in Code Section 152);
(4) Prevention of the eviction of the Participant from his principal
residence or foreclosure on the mortgage of the Participant's principal
residence.
(d) NECESSARY TO SATISFY FINANCIAL NEED
No Financial Hardship Withdrawal may exceed the amount necessary to satisfy the
Participant's immediate and heavy financial need. However, the amount of an
immediate and heavy financial need may include any amounts necessary to pay any
federal, state or local income taxes or penalties reasonably anticipated to
result from the distribution.
A withdrawal will be treated as necessary only to the extent the Participant
certifies in writing or through such other means as may be approved by the Plan
Administrator (and the Plan Administrator does not have actual knowledge to the
contrary) that the need cannot be reasonably relieved by any of the following:
(1) Reimbursement or compensation by insurance or otherwise;
(2) Reasonable liquidation of assets to the extent the liquidation would not
itself cause an immediate and heavy financial need;
(3) Cessation of Employee Pre-tax Contributions or Employee After-tax
Contributions (as defined in Section 11.02(b)) or both under any plan maintained
by any employer;
(4) Other distributions or nontaxable (at the time of the loan) loans from
plans maintained by any employer;
(5) Borrowing from commercial sources on reasonable commercial terms.
Unless the Plan Administrator has evidence to the contrary, it may rely upon the
Participant's representation, in writing or through such other means as may be
permitted by applicable regulations, that the need cannot be relieved by any of
the foregoing.
(e) SAFE HARBOR
No withdrawal may be made until the Participant has obtained all distributions,
other than hardship distributions, and all nontaxable loans currently available
to the Participant under all plans maintained by the Employer.
5.05 LIMITATION ON DISTRIBUTIONS FROM ELECTIVE CONTRIBUTION ACCOUNTS
No distribution may be made from the Participant's Employee Account or any
account comprised of Matching Contributions or Nonelective Contributions which
are treated as Elective Contributions in accordance with the provisions of
Section 11.02(b) except under one of the following circumstances:
(a) the Participant's retirement, death, disability or separation from
service within the meaning of Code Section 401(k)(2)(B);
(b) the Participant's attaining of age 59 1/2 ;
(c) the avoidance or alleviation of a Financial Hardship
(d) the termination of this Plan without the establishment of a successor
plan within the meaning of Treasury Regulation 1.401(k)-1(d)(3);
(e) the sale or other disposition by the Employer of at least 85 percent of
the assets used by the Employer in a trade or business to an unrelated
corporation which does not maintain the plan, but only if the Participant
continues employment with the corporation acquiring the assets and only if the
Employer continues to maintain this Plan; or
(f) the sale or other disposition by the Employer of its interest in a
subsidiary to an unrelated entity which does not maintain the plan, but only if
the Participant continues employment with the subsidiary and only if the
Employer continues to maintain this Plan.
This paragraph does not apply to distributions of Excess Deferrals, Excess
Contributions, or excess Annual Additions.
5.06 BENEFITS ATTRIBUTABLE TO ASSETS TRANSFERRED FROM A PRIOR PLAN
Notwithstanding any provision of this Plan to the contrary, amounts transferred
to this plan in accordance with a Written Resolution pursuant to Section 8.06
will remain subject to any withdrawal rights or restrictions that are regarded
as protected benefits under the Code and, to the extent required by law, will
remain subject to payment in the form, at the times, and on the occasions
provided in the transferor plan.
ARTICLE 6
PARTICIPANT LOANS
6.01 LOANS TO PARTICIPANTS
The Plan Administrator may authorize the Trustee to lend on a nondiscriminatory
basis to a Participant an amount from the Plan as specified herein; provided, a
reasonable rate of interest will be charged on the loan, the loan will be
secured by 50% of the Participant's Vested Accrued Benefit in the Plan, and
provision for repayment will be made. All loans will be subject to the approval
of the Plan Administrator which will investigate each application for a loan.
The Plan Administrator will prescribe such rules as may be necessary to provide
guidelines as to under which circumstances and for what purpose loans will be
permitted.
Notwithstanding the foregoing, the Plan Administrator will not authorize a loan
to a Participant (or Beneficiary) who, at the time the loan is to be made, is
not or will not be a Party in Interest as defined in ERISA Section 3(14), and
each loan will provide for acceleration and maturity at such time as the
Participant (or Beneficiary) ceases to be a Party in Interest.
The Plan Administrator will prescribe guidelines as to which Account or Accounts
loans may be made from. Each loan made to a Participant will be made from the
Participant's allowable Account or Accounts. All interest and principal
repayments will be credited to the Participant's Account from which the loan was
made.
6.02 TERMS AND CONDITIONS
In addition to any additional rules and regulations as the Plan Administrator
may adopt, all loans will comply with the following terms and conditions:
(a) Each application for a loan by a Participant will be made to the Plan
Administrator in writing or through such other means as may be approved by the
Plan Administrator. The Plan Administrator's action thereon will be final.
(b) Each loan will be made against collateral being the assignment of no
more than 50% of the borrower's entire right, title and interest in and to the
Trust Fund on the date the loan is made, supported by the borrower's promissory
note for the amount of the loan, including interest payable to the order to the
Trustee, and any additional security deemed necessary to adequately secure the
Loan. If a person fails to make a required payment by the end of the calendar
quarter following the due date set forth in the loan agreement, the loan will be
in default. There will be no foreclosure against a Participant's Accrued
Benefit prior to his becoming entitled to a distribution of benefits in
accordance with the terms of this Plan. All loans will become due and payable
in full upon the termination of a Participant's employment. If a Participant
with an outstanding loan terminates employment and becomes entitled to a
distribution of benefits from the Plan, then the outstanding balance of the
unpaid loan plus any accrued interest thereon will be deducted from the amount
of otherwise distributable benefits and the Participant's promissory note will
be distributed to the Participant.
(c) The principal repayment will be amortized over the fixed life of a loan
with installments of principal and interest to be paid not less often than
quarterly. The period of repayment for each loan will be arrived at by mutual
agreement between the Plan Administrator and the borrower, but in no event will
such period exceed a reasonable period of time. The period of repayment will in
no event exceed 5 years unless the loan is to be used to acquire any dwelling
unit which, within a reasonable period of time, is to be used as a principal
residence of the Participant.
(d) The Plan Administrator may establish a minimum loan amount that may not
be in excess of $1,000.
(e) The maximum amount of any loan is such that when the amount of the loan
is added to the outstanding balance of all other loans made to the Participant
from the Plan (and any other plans maintained by the Plan Sponsor or any Related
Employer) the total does not exceed the lesser of:
(1) 50% of the Participant's Vested Accrued Benefit; or
(2) $50,000, reduced by the amount, if any, of the highest balance of all
outstanding loans to the Participant during the one-year period ending on the
day prior to the day on which the loan in question is made.
(f) Each loan will bear interest at a rate equal to the prime rate which is
published in the Wall Street Journal as being representative of the base rate on
corporate loans at large U.S. money center commercial banks on the date on which
the loan is made, plus 2 percentage points.
(g) The Plan Administrator may limit the number of loans that a Participant
may have outstanding at one time.
(h) No loan will be permitted to a Participant in a year in which he is
either an Owner-Employee or Shareholder-Employee as defined in Code Section
4975(d) unless the loan is the subject of an administrative exemption granted by
the U.S. Department of Labor.
(i) Loan repayments will be suspended under this plan as permitted under
Code Section 414(u)(4) which pertains to employees who are absent from a
position with the Plan Sponsor or Related Employer because of Qualified Military
Service as defined in Section 8.12.
ARTICLE 7
PAYMENT OF BENEFITS
7.01 VALUATION OF ACCOUNTS
For purposes of this Article, the value of a Participant's Accrued Benefit will
be determined as of the Valuation Date his Accounts are liquidated to effect his
distribution.
7.02 NORMAL RETIREMENT
In the event of a Participant's termination of employment after he has reached
his Normal Retirement Date, he will become a Retired Participant and his Accrued
Benefit will become distributable to him. An Active Participant's Accrued
Benefit will become non-forfeitable no later than the date upon which he attains
his Normal Retirement Age. An Active Participant who has attained Normal
Retirement Age may elect to withdraw all or a portion of his Accrued Benefit
from the Plan prior to his separation from service due to retirement. The form
and timing of benefit payment will be governed by the provisions of Section
7.07.
7.03 DISABILITY RETIREMENT
In the event of a Participant's termination of employment due to Disability, his
Accrued Benefit will become non-forfeitable and he will be entitled to begin to
receive a distribution of his Accrued Benefit as of his date of termination.
The form and timing of benefit payment will be governed by the provisions of
Section 7.07.
Disability means the determination by the Plan Administrator that a Participant
is unable by reason of any medically determinable physical or mental impairment
to perform the usual duties of his employment or of any other employment for
which he is reasonably qualified based upon his education, training and
experience.
7.04 DEATH BENEFIT
In the event of the death of a Participant prior to the date on which he
receives a complete distribution of his benefit under the Plan, if the
Participant has a Surviving Spouse and if a Beneficiary other than the
Participant's Surviving Spouse has not been designated pursuant to a Qualified
Election, the Participant's Surviving Spouse will be entitled to receive the
value of the Participant's Accrued Benefit.
If a Surviving Spouse does not exist or if a Beneficiary other than the
Participant's Surviving Spouse has been designated pursuant to a Qualified
Election, the Participant's designated Beneficiary will be entitled to receive
the value of the Participant's Accrued Benefit.
7.05 DESIGNATION OF BENEFICIARY
(a) GENERAL
Each Participant will be given the opportunity to designate a Beneficiary or
Beneficiaries, and from time to time the Participant may file with the Plan
Administrator a new or revised designation on the form provided by the Plan
Administrator. If a Participant is married, any designation of a Beneficiary
other than the Participant's spouse must be consented to by the Participant's
spouse pursuant to a Qualified Election.
If a Participant dies without a spouse or designated Beneficiary surviving; if
the designated Beneficiary (other than the spouse) does not survive until final
distribution of the Participant's Vested Accrued Benefit; if a Participant who
is not married dies without a designated Beneficiary; if a Participant who is
not married dies after having made and revoked a designation but prior to having
made a subsequent designation, or if the Plan Administrator determines that a
Participant's Beneficiary designation is not effective for any reason, then the
amount remaining of the deceased Participant's Vested Accrued Benefit will be
payable in the following descending order to:
(1) the Participant's Surviving Spouse (if applicable);
(2) the Participant's estate.
(b) SURVIVING SPOUSE
Surviving Spouse means a deceased Participant's spouse who was married to the
Participant on the Participant's date of death. The Plan Administrator and the
Trustee may rely conclusively on a Participant's statement, in writing or
through such other means as may be approved by the Plan Administrator, of his
marital status. Neither the Plan Administrator nor the Trustee is required at
any time to inquire into the validity of any marriage, the effectiveness of a
common-law relationship or the claim of any alleged spouse which is inconsistent
with the Participant's report of his marital status and the identity of his
spouse.
If it is established to the satisfaction of the Plan Administrator that the
spouse cannot be located, then the deceased Participant's Vested Accrued Benefit
will be paid as if there were no surviving spouse. If the spouse is legally
incompetent, any election or consent by the spouse may be made by the spouse's
legal guardian. If the deceased Participant is legally separated or has been
abandoned (within the meaning of local law) and there is an order from a court
of competent jurisdiction to this effect, then the deceased Participant's Vested
Accrued Benefit will be paid as if there were no surviving spouse.
(c) QUALIFIED ELECTION FOR ACCOUNTS NOT SUBJECT TO QUALIFIED ANNUITY RULES
A Qualified Election for Accounts not subject to Qualified Annuity rules means
the designation of a specific Beneficiary other than the Participant's spouse.
Such Qualified Election must be in writing and must be consented to by the
Participant's spouse. The spouse's written consent to a Qualified Election must
be witnessed by a representative of the Plan Administrator or a notary public.
Such consent will not be required if the Participant establishes to the
satisfaction of the Plan Administrator that such written consent may not be
obtained because there is no spouse, the spouse cannot be located or other
circumstances that may be prescribed by Treasury Regulations. Any consent
necessary under this provision will be valid only with respect to the spouse who
signs the consent (or in the event of a deemed Qualified Election, the
designated spouse). Additionally, a revocation of a prior Qualified Election
may be made by a Participant without the consent of the spouse at any time
before the commencement of benefits; however, any Qualified Election which
follows such revocation must be in writing and must be consented to by the
Participant's spouse. The number of Qualified Elections or revocations of such
Qualified Elections will not be limited.
7.06 TERMINATION OF EMPLOYMENT
(a) IN GENERAL
If a Participant's employment terminates for any reason other than retirement,
death, or disability, his Vested Accrued Benefit will become distributable to
him as soon as administratively feasible. The form and timing of benefit
payment will be governed by the provisions of Section 7.07.
(b) CASH-OUT DISTRIBUTION
If a Participant terminates employment and receives a distribution equal to the
Vested Percentage of his Accounts which are subject to the Vesting Schedule
(such Accounts are hereinafter referred to as Employer Contribution Accounts), a
Cash-Out Distribution will have occurred if the following conditions are met:
(1) The Participant was less than 100% vested in his Employer Contribution
Accounts and
(2) The distribution was made due to the Employee's termination of
participation in the Plan.
A distribution will be deemed to be due to the termination of an Employee's
participation in the Plan if it is made no later than the close of the second
Plan Year following the Plan Year in which such termination occurs.
(c) RESTORATION OF EMPLOYER CONTRIBUTION ACCOUNTS
If, following the date of a Cash-Out Distribution, a Former Participant returns
to an Eligible Employee Classification prior to incurring 5 consecutive One Year
Breaks-in-Service, then the Participant will have the right to repay, in cash,
to the Trustee, within 5 years after his return date, the portion of the
Cash-Out Distribution which was attributable to his Employer Contribution
Accounts which were less than 100% vested in order to restore such Accounts to
their value as of the date of the Cash-Out Distribution. The Plan Administrator
will restore an eligible Participant's Employer Contribution Accounts as of the
Valuation Date coincident with or immediately following the complete repayment
of the Cash-Out Distribution.
To restore the Participant's Employer Accounts the Plan Administrator, to the
extent necessary, will, under rules and guidelines applied in a uniform and
nondiscriminatory manner, first allocate to the Participant's Employer
Contribution Accounts the amount, if any, of Forfeitures which would otherwise
be allocated under Article 3.
To the extent such Forfeitures are insufficient to enable the Plan Administrator
to make the required restoration, the Employer will contribute such additional
amount as is necessary to enable the Plan Administrator to make the required
restoration. The Plan Administrator will not take into account the allocation
under this Section in applying the limitation on allocations under Article 10.
(d) NON-VESTED PARTICIPANT
If a Participant who is zero percent vested in his Employer Accounts terminates
employment, a Cash-Out Distribution will be deemed to have occurred as of the
Participant's date of termination of employment.
If the Participant subsequently returns to an Eligible Employee Classification
prior to incurring five consecutive One Year Breaks-in-Service, then the
Participant will immediately become entitled to a complete restoration of his
Employer Contribution Accounts as of the Valuation Date coincident with or next
following his date of re-employment. Such restoration will be made in
accordance with the provisions of Section 7.06(c).
7.07 TIMING AND FORM OF BENEFIT PAYMENTS
(a) TIMING OF BENEFIT PAYMENT
Subject to the provisions of Section 7.08, the Plan Administrator will direct
the Trustee to make the payment of any benefit provided under this Plan upon the
event giving rise to such benefit within 60 days following the receipt of a
Participant's request for the payment of benefits in writing or through such
other means as may be approved by the Plan Administrator and in a format
specified by the Plan Administrator. The Plan Administrator may temporarily
suspend such processing in the event of unusual or extraordinary circumstances
such as the conversion of Plan records from one recordkeeper to another.
(b) FORM OF BENEFIT PAYMENT
The form of benefit will be a single sum payment, unless the Participant elects
to receive his benefit in the form of a direct transfer pursuant to Section
7.09. The Plan Administrator may establish a policy permitting a Vested
Terminated Participant who is eligible to receive a single sum payment of his
benefit to elect a partial distribution of his benefit.
With respect to a Participant whose Accrued Benefit is not subject to the
Qualified Annuity rules, if a Participant's Vested Accrued Benefit is in excess
of $5,000, any payment of benefits prior to the Participant's Normal Retirement
Date will be subject to the Participant's consent in writing or through such
other means as may be approved by the Plan Administrator.
Notwithstanding the foregoing, if a terminated Participant's Vested Accrued
Benefit is $5,000 or less, such Participant's Vested Accrued Benefit will be
payable in a single sum payment of the entire amount of his Vested Accrued
Benefit. The Plan Administrator may, in accordance a policy that does not
discriminate among Participants, establish periodic times when the Plan
Administrator will direct the distribution of such amounts without the request
or approval of the Participant. For Accrued Benefits that are subject to the
Qualified Annuity rules, this paragraph will not apply after the Annuity
Starting Date.
7.08 COMMENCEMENT OF BENEFIT
(a) GENERAL
Subject to the provisions of this Article, commencement of a benefit will,
unless the Participant elects otherwise in writing or through such other means
as may be approved by the Plan Administrator, begin not later than the 60th day
after the later of the close of the Plan Year in which the Participant attains
Normal Retirement Age or the close of the Plan Year which contains the date the
Participant terminates his service with the Employer.
Payment of a Participant's benefits must begin no later than his Required
Beginning Date.
(b) REQUIRED BEGINNING DATE
Effective the later of the Effective Date of the Plan or the first day of the
first Plan Year beginning after December 31, 1996, the Required Beginning Date
for the commencement of benefit payments from the Plan is the April 1
immediately following the later of (i) the calendar year in which the
Participant attains age 70 1/2, or (ii) if so elected by the Participant, the
calendar year in which the Participant retires.
Notwithstanding the foregoing, the Required Beginning Date for a Participant who
is a Five Percent Owner (as defined in Section 12.01(d)) with respect to the
Plan Year in which the Participant attains age 70 1/2, is the April 1
immediately following the calendar year in which he attains age 70 1/2.
All distributions required under this Section will be determined and made in
accordance with the regulations issued under Code Section 401(a)(9), including
those dealing with minimum distribution requirements. Notwithstanding the
provisions of Section 7.07, an Active Participant who has reached his Required
Beginning Date will receive an annual distribution of his Accrued Benefit equal
to the minimum required distribution determined under Code Section 401(a)(9).
(c) LIFE EXPECTANCY
For purposes of this Section, life expectancy and joint and last survivor
expectancy are to be computed by the use of the return multiples contained in
Treasury Regulations 1.72-9. Unless the Participant elects otherwise by the
time of the first required distribution, life expectancy of the Participant and
the surviving spouse will be recalculated annually. Such election will be
irrevocable. The life expectancy of any other designated Beneficiary will be
calculated at the time payment first begins without further recalculation.
If the Participant dies after distribution of his interest has begun, the
remaining portion of the interest will continue to be distributed at least as
rapidly as under the method of distribution being used before the Participant's
death.
7.09 DIRECTED TRANSFER OF ELIGIBLE ROLLOVER DISTRIBUTIONS
(a) GENERAL
Notwithstanding any provision of the Plan to the contrary that would otherwise
limit a Distributee's election under this Section, a Distributee may elect, at
the time and in the manner prescribed by the Plan Administrator, to have any
portion of an Eligible Rollover Distribution paid directly to an Eligible
Retirement Plan specified by the Distributee in a Direct Rollover.
(b) ELIGIBLE ROLLOVER DISTRIBUTION
An Eligible Rollover Distribution is any distribution of all or any portion of
the balance to the credit of the Distributee, except that an Eligible Rollover
Distribution does not include: any distribution that is one of a series of
substantially equal periodic payments (not less frequently than annually) made
for the life (or life expectancy) of the Distributee or the joint lives (or
joint life expectancies) of the Distributee and the Distributee's designated
beneficiary, or for a specified period of ten years or more; any distribution to
the extent such distribution is required under Code Section 401(a)(9); and the
portion of any distribution that is not includable in gross income (determined
without regard to the exclusion for net unrealized appreciation with respect to
employer securities).
(c) ELIGIBLE RETIREMENT PLAN
An Eligible Retirement Plan is an individual retirement account described in
Code Section 408(a), an individual retirement annuity described in Code Section
408(b), or a qualified trust described in Code Section 401(a), that accepts the
Distributee's Eligible Rollover Distribution. However, in the case of an
Eligible Rollover Distribution to the surviving spouse, an Eligible Retirement
Plan is an individual retirement account or individual retirement annuity.
(d) DISTRIBUTEE
A Distributee includes an Employee or Former Employee. In addition, the
Employee's or Former Employee's surviving spouse and the Employee's or Former
Employee's spouse or former spouse who is the alternate payee under a qualified
domestic relations order, as defined in Code Section 414(p), are Distributees
with regard to the interest of the spouse or former spouse.
(e) DIRECT ROLLOVER
A Direct Rollover is a payment by the Plan to the Eligible Retirement Plan
specified by the Distributee.
(F) WAIVER OF 30-DAY NOTICE
If a distribution is one to which Code Sections 401(a)(11) and 417 do not apply,
such distribution may commence less than 30 days after the notice required under
Treasury Regulation 1.411(a)-11(c) is given, provided that:
(1) the Plan Administrator clearly informs the Participant that the
Participant has a right to a period of at least 30 days after receiving the
notice to consider the decision of whether or not to elect a distribution (and,
if applicable, a particular distribution option); and
(2) the Participant, after receiving the notice, affirmatively elects to
receive a distribution.
ARTICLE 8
MISCELLANEOUS
8.01 EXCLUSIVE BENEFIT
At no time will any part of the principal or income of the Plan assets be used
or diverted for purposes other than the exclusive benefit of Participants in the
Plan and their Beneficiaries, nor may any portion of the Plan assets revert to
the Plan Sponsor or any other Employer except as provided in Sections 10.01(e)
and 8.11.
8.02 EMPLOYMENT RIGHTS OF PARTIES NOT RESTRICTED
The adoption and maintenance of this Plan will not be deemed a contract between
the Plan Sponsor and any Employee. Nothing in this Plan will give any Employee
or Participant the right to be retained in the employ of the Plan Sponsor or to
interfere with the right of the Plan Sponsor to discharge any Employee or
Participant at any time, nor will it give the Plan Sponsor the right to require
any Employee or Participant to remain in its employ, or to interfere with any
Employee's or Participant's right to terminate his employment at any time.
8.03 RIGHT OF PLAN SPONSOR TO AMEND OR TERMINATE
The Plan Sponsor reserves the right to alter, amend, revoke or terminate this
Plan. No amendment will deprive any Participant or Beneficiary of any vested
right nor will it reduce any Accrued Benefit to which he is then entitled with
respect to Employer contributions previously made, except as may be required to
maintain the Plan as a qualified plan under the Code. No amendment will change
the duties or responsibilities of the Trustee without its express written
consent thereto.
A plan amendment which has the effect of eliminating an optional benefit form,
will, with respect to benefits attributable to service before the amendment, be
treated as reducing Accrued Benefits.
If this Plan is revoked or terminated (in whole or in part) or if contributions
are completely discontinued, the Accounts of all affected Participants will
become non-forfeitable. The Plan Sponsor will then arrange for allocation of
all assets among Participants so affected by the total or partial termination in
accordance with the requirements of all applicable law and the regulations and
requirements of the Internal Revenue Service. All allocated amounts will be
retained in the Plan to the credit of the individual Participants until
distribution as directed by the Plan Sponsor. Distributions to Participants may
be in the form of cash or other Plan assets or partly in each.
8.04 AMENDMENT TO VESTING SCHEDULE
No amendment to the Vesting Schedule will deprive a Participant of his
non-forfeitable right to his Vested Accrued Benefit as of the date of the
amendment. Further, if the Vesting Schedule of the Plan is amended, or if the
Plan is amended in any way that directly or indirectly affects the computation
of a Participant's non-forfeitable percentage, each Participant in the Plan as
of the date of the amendment will have his Vested Percentage computed according
to the amended Vesting Schedule or according to the Vesting Schedule prior to
the amendment, whichever results in the higher Vested Percentage.
8.05 QUALIFICATION OF PLAN
The Plan Sponsor will have the sole responsibility for obtaining and retaining
qualification of the Plan under the Code with respect to the Plan Sponsor's
individual circumstances.
Notwithstanding any of the foregoing provisions, if this Plan, upon adoption by
the Plan Sponsor, is submitted to the Internal Revenue Service within the
remedial amendment period for the tax year in which the Plan is first effective,
and the Internal Revenue Service then determines that the Plan as initially
adopted by the Plan Sponsor is not a qualified plan under the Code, the Plan
Sponsor may elect to terminate this Plan by giving notice thereof in writing or
through such other means a may be permitted by law. Such termination will have
the same effect as if the Plan were never adopted, all policies and contracts
will be canceled, and all contributions, to the extent recoverable from the
Trustee, will be returned to their source. If any amendment to this Plan is
submitted to the Internal Revenue Service within the period allowed under Code
Section 401(b) which then determines that the Plan as amended is not a qualified
plan under the Code, the Plan Sponsor may cancel or modify any or all provisions
of the amendment retroactive to the effective date of the amendment in order to
maintain the qualified status of the Plan, whereupon notice thereof will be
furnished to all affected Employees, Participants and Beneficiaries in writing
or through such other means as may be permitted by law.
8.06 MERGERS, CONSOLIDATIONS OR TRANSFERS OF PLAN ASSETS
In the event this Plan is merged or consolidated with another plan which is
qualified under Code Sections 401(a) (and 501(a) if applicable), or in the event
of a transfer of the assets or liabilities of this Plan to another plan which is
qualified under Code Sections 401(a) (and 501(a) if applicable), the benefit
which each Participant would be entitled to receive under the successor plan or
other plan if it were terminated immediately after the merger, consolidation or
transfer will be equal to or greater than the benefit which the Participant
would have received immediately before the merger, consolidation or transfer if
this Plan had then terminated.
Any transfer of assets and/or liabilities to (or from) this Plan from (or to)
another plan qualified under Code Sections 401(a) (and 501(a) if applicable)
will be evidenced by a Written Resolution by the Plan Sponsor of each affected
plan which specifically authorizes such transfer of assets and/or liabilities.
Any transfer of assets to this Plan will be allowed under the provisions of this
Section if such transferred assets are not required to be paid in the form of a
qualified joint & survivor annuity or a qualified survivor annuity in accordance
with Code Section 401(a)(11).
8.07 ALIENATION
(a) GENERAL
No person entitled to any benefit under this Plan will have any right to sell,
assign, transfer, hypothecate, encumber, commute, pledge, anticipate or
otherwise dispose of his interest in the benefit, and any attempt to do so will
be void. No benefit under this Plan will be subject to any legal process, levy,
execution, attachment or garnishment for the payment of any claim against such
person.
(b) EXCEPTIONS
Section 8.07(a) will not apply to the extent a Participant or Beneficiary is
indebted to the Plan under the provisions of the Plan. At the time a
distribution is to be made to or for a Participant's or Beneficiary's benefit,
the portion of the amount distributed which equals the indebtedness will be
withheld by the Trustee to apply against or discharge the indebtedness. Before
making a payment, however, the Participant or Beneficiary must be given notice,
in writing, or through such electronic means as may be permitted by applicable
regulations, that the indebtedness is to be so paid in whole or part from his
Participant's Accrued Benefit. If the Participant or Beneficiary does not agree
that the indebtedness is a valid claim against his Vested Accrued Benefit, he
will be entitled to a review of the validity of the claim in accordance with
procedures established by the Plan Administrator.
Section 8.07(a) will not apply to a qualified domestic relations order (QDRO) as
defined in Code Section 414(p), and those other domestic relations orders
permitted to be so treated by the Plan Administrator under the provisions of the
Retirement Equity Act of 1984. The Plan Administrator will establish a written
procedure to determine the qualified status of domestic relations orders and to
administer distributions under such qualified orders. Further, to the extent
provided under a QDRO, a former spouse of a Participant will be treated as the
spouse or Surviving Spouse (as defined in Section 7.05) for all purposes under
the Plan. All rights and benefits, including elections, provided to a
Participant under this Plan will be subject to the rights afforded to any
alternate payee as such term is defined in Code Section 414(p).
This Plan specifically permits distribution to an alternate payee under a QDRO
(without regard to whether the Participant has attained his or her earliest
retirement age as that term is defined under Code Section 414(p)) in the same
manner that is provided for a Vested Terminated Participant.
8.08 CONSTRUCTION
To the extent not preempted by ERISA, this Plan will be construed according to
the laws of the state in which the Plan Sponsor's principal place of business is
located. Words used in the singular will include the plural, the masculine
gender will include the feminine, and vice versa, whenever appropriate.
8.09 NAMED FIDUCIARIES
(a) ALLOCATION OF FUNCTIONS
The authority to control and manage the operation and administration of the Plan
and Trust created by this instrument will be allocated between the Plan Sponsor
and the Plan Administrator, each of whom are designated as Named Fiduciaries
with respect to the Plan and Trust as provided for by Section 402(a)(2) of
ERISA. The Plan Sponsor reserves the right to allocate the various
responsibilities for the present execution of the functions of the Plan, other
than the Trustees' responsibilities, among its Named Fiduciaries. Any person or
group of persons may serve in more than one fiduciary capacity with regard to
the Plan.
(b) RESPONSIBILITIES OF THE PLAN SPONSOR
The Plan Sponsor, in its capacity as a Named Fiduciary, will have only the
following authority and responsibility:
(1) To appoint or remove the Plan Administrator and furnish the Trustee with
certified copies of any resolutions of the Plan Sponsor with regard thereto;
(2) To appoint and remove the Trustee;
(3) To appoint a successor Trustee or additional Trustees;
(4) To communicate information to the Plan Administrator and the Trustee as
needed for the proper performance of the duties of each;
(5) To appoint an investment manager (or to refrain from such appointment),
to monitor the performance of the investment manager so appointed, and to
terminate such appointment (more than one investment manger may be appointed and
in office at any time); and
(6) To establish and communicate to the Trustee a funding policy for the Plan.
(c) LIMITATION ON OBLIGATIONS OF NAMED FIDUCIARIES
No Named Fiduciary will have authority or responsibility to deal with matters
other than as delegated to it under this Plan or by operation of law. A Named
Fiduciary will not in any event be liable for breach of fiduciary responsibility
or obligation by another fiduciary (including Named Fiduciaries) if the
responsibility or authority of the act or omission deemed to be a breach was not
within the scope of the Named Fiduciary's authority or delegated responsibility.
(d) STANDARD OF CARE AND SKILL
The duties of each fiduciary will be performed with the care, skill, prudence
and diligence under the circumstances then prevailing that a prudent person
acting in a like capacity and familiar with such matters would use in the
conduct of an enterprise of like character and with like objectives.
8.10 ADOPTION AND WITHDRAWAL BY OTHER ORGANIZATIONS
(a) PROCEDURE FOR ADOPTION
Subject to the provisions of this Section, any organization now in existence or
hereafter formed or acquired, which is not already a Participating Employer
under this Plan and which is otherwise legally eligible may, in the future, with
the consent and approval of the Plan Sponsor, by formal Written Resolution
(referred to in this Section as an Adoption Resolution), adopt the Plan and
Trust hereby created for all or any classification of persons in its employment
and thereby, from and after the specified effective date, become a Participating
Employer under this Plan. Such consent will be effected by and evidenced by a
formal Written Resolution of the Plan Sponsor. The Plan Sponsor's consent may
provide for adoption by all Related Employers. The Adoption Resolution may
contain such specific changes and variations in Plan terms and provisions
applicable to the adopting Participating Employer and its Employees as may be
acceptable to the Plan Sponsor. However, the sole, exclusive right of any other
amendment of whatever kind or extent to the Plan is reserved to the Plan
Sponsor. The Adoption Resolution will become, as to the adopting organization
and its Employees, a part of this Plan as then amended or thereafter amended.
It will not be necessary for the adopting organization to sign or execute the
original or then amended Plan and Trust Agreement or any future amendment to the
Plan and Trust Agreement. The effective date of the Plan for the adopting
organization will be that stated in the Adoption Resolution and from and after
such effective date the adopting organization will assume all the rights,
obligations and liabilities as a Participating Employer under this Plan. The
administrative powers of and control by the Plan Sponsor as provided in the
Plan, including the sole right of amendment or termination of the Plan, of
appointment and removal of the Plan Administrator and the Trustee, and of
appointment and removal of an investment manager will not be diminished by
reason of the participation of the adopting organization in the Plan.
(b) WITHDRAWAL
Any Participating Employer may withdraw from the Plan at any time, without
affecting the Plan Sponsor or other Participating Employers not withdrawing, by
complying with the provisions of the Plan. A withdrawing Participating Employer
may arrange for the continuation by itself or its successor of this Plan in
separate forms for its own employees, with such amendments, if any, as it may
deem proper, and may arrange for continuation of the Plan by merger with an
existing plan and transfer of plan assets. The Plan Sponsor may, in its
absolute discretion, terminate a Participating Employer's participation at any
time when in its judgment the Participating Employer fails or refuses to
discharge its obligations under the Plan.
(c) ADOPTION CONTINGENT UPON INITIAL AND CONTINUED QUALIFICATIONS
The adoption of this Plan by an organization as provided is hereby made
contingent and subject to the condition precedent that said adopting
organization meets, for its Employees, all the statutory requirements for
qualified plans, including, but not limited to, Code Sections 401(a) and 501(a).
If the Plan or the Trust, in its operation, becomes disqualified, for any
reason, as to the adopting organization and its Employees, the portion of the
Plan assets allocable to them will be segregated as soon as is administratively
feasible, pending either the prompt (1) requalification of the Plan as to the
organization and its employees to the satisfaction of the Internal
Revenue Service so as not to affect the continued qualified status thereof as
to other Employers, (2) withdrawal of the organization from this Plan and
a continuation by itself or its successor of its plan separately from this
Plan, or by merger with another existing plan, with a transfer of its said
segregated portion of Plan assets, or (3) termination of the Plan as to
itself and its Employees.
8.11 EMPLOYER CONTRIBUTIONS
Employer contributions made to the Plan and Trust are made and will be held for
the sole purpose of providing benefits to Participants and their Beneficiaries.
In no event will any contribution made by the Employer to the Plan and Trust or
income therefrom revert to the Employer except as provided in Section 10.01(e)
or as provided below.
(a) Notwithstanding any provision of this Plan to the contrary, if a
contribution is made by an Employer because of a mistake of fact, the
contribution may be returned to the Employer within one year after the payment
of the contribution. If demand is made by the Employer within one year after
payment of the contribution, the Trustee will return the amount of the mistaken
contribution which will be equal to the excess of (a) the amount contributed
over (b) the amount that would have been contributed had there not occurred a
mistake of fact. Earnings attributable to mistaken contributions may not be
returned to the Employer, but losses attributable thereto will reduce the amount
to be returned.
(b) Notwithstanding any provision of this Plan to the contrary, if the
Internal Revenue Service determines initially that the Plan, as adopted by the
Employer, does not qualify under applicable sections of the Code and applicable
Treasury Regulations, and the Employer does not wish to amend this Plan and
Trust so that it does qualify, the value of all assets will be distributed by
the Trustee to the Employer within one year after the date such initial
qualification is denied. Thereafter, the Employer's participation in this Plan
and Trust will be considered rescinded and of no force or effect.
(c) Notwithstanding any provision of this Plan to the contrary, any
contribution by the Employer to the Plan is conditioned on the deductibility of
the contribution by the Employer under the Code. To the extent any deduction is
disallowed, the Employer, within one year following a final determination of the
disallowance, whether by agreement with the Internal Revenue Service or by final
decision in a court of competent jurisdiction, may demand repayment of the
disallowed contribution, and the Trustee will return the contribution within one
year following the disallowance. Earnings attributable to excess contributions
may not be returned to the Employer, but losses attributable thereto will reduce
the amount to be returned.
8.12 EMPLOYEES IN QUALIFIED MILITARY SERVICE
Notwithstanding any provision of this Plan to the contrary, contributions,
benefits and service credits with respect to qualified military service will be
provided in accordance with Code Section 414(u). Provisions of this plan that
refer to Qualified Military Service as defined in Code Section 414(u) are
effective on the later of the Effective Date of the Plan or December 12, 1994.
ARTICLE 9
ADMINISTRATION
9.01 PLAN ADMINISTRATOR
The Plan Administrator will have the responsibility for the general supervision
and administration of the Plan and will be a fiduciary of the Plan. The Plan
Sponsor may, by Written Resolution, appoint one or more individuals to serve as
Plan Administrator. If the Plan Sponsor does not appoint an individual or
individuals as Plan Administrator, the Plan Sponsor will function as Plan
Administrator. The Plan Sponsor may at any time, with or without cause, remove
an individual as Plan Administrator or substitute another individual therefor.
9.02 POWERS AND DUTIES OF THE PLAN ADMINISTRATOR
The Plan Administrator will be charged with and will have delegated to it the
full power, duty, authority and discretion to interpret and construe the
provisions of this Plan, to determine its meaning and intent and to make
application thereof to the facts of any individual case; to determine in its
discretion the rights and benefits of Participants and the eligibility of
Employees; to give necessary instructions and directions to the Trustee and the
Insurer as herein provided or as may be requested by the Trustee and the Insurer
from time to time; to resolve all questions of fact relating to any of the
foregoing; and generally to direct the administration of the Plan according to
its terms. All decisions of the Plan Administrator in matters properly coming
before it according to the terms of this Plan, and all actions taken by the Plan
Administrator in the proper exercise of its administrative powers, duties and
responsibilities, will be final and binding upon all Employees, Participants and
Beneficiaries and upon any person having or claiming any rights or interest in
this Plan. The Plan Administrator may engage agents to assist it and may engage
legal counsel who may be counsel for the Plan Sponsor.
The Plan Sponsor and the Plan Administrator will make and receive any reports
and information, and retain any records necessary or appropriate to the
administration of this Plan or to the performance of duties hereunder or to
satisfy any requirements imposed by law. In the performance of its duties, the
Plan Administrator will be entitled to rely on information duly furnished by any
Employee, Participant or Beneficiary or by the Plan Sponsor or Trustee.
9.03 ACTIONS OF THE PLAN ADMINISTRATOR
The Plan Administrator may adopt such rules as it deems necessary, desirable or
appropriate with respect to the conduct of its affairs and the administration of
the Plan. Whenever any action to be taken in accordance with the terms of the
Plan requires the consent or approval of the Plan Administrator, or whenever an
interpretation is to be made of the terms of the Plan, the Plan Administrator
will act in a uniform and non-discriminatory manner, treating all Employees and
Participants in similar circumstances in a like manner. If the Plan
Administrator is a group of individuals, all of its decisions will be made by a
majority vote. The Plan Administrator will have the authority to employ one or
more persons to render advice or services with regard to the responsibilities of
the Plan Administrator, including but not limited to attorneys, actuaries, and
accountants. The Plan Administrator will have the authority to delegate its
responsibilities under the Plan to appropriate individuals or entities to act on
behalf of the Plan Administrator. Any persons employed to render advice or
services will have no fiduciary responsibility for any ministerial functions
performed with respect to this Plan.
9.04 RELIANCE ON PLAN ADMINISTRATOR AND PLAN SPONSOR
Until the Plan Sponsor gives notice to the contrary, the Trustee and any persons
employed to render advice or services will be entitled to rely on the
designation of Plan Administrator that has been furnished to them. In addition,
the Trustee and any persons employed to render advice or services will be fully
protected in acting upon the written directions and instructions of the Plan
Administrator made in accordance with the terms of this Plan. If the Plan
Administrator is a group of individuals, unless otherwise specified, any one of
such individuals will be authorized to sign documents on behalf of the Plan
Administrator and such authorized signatures will be recognized by all persons
dealing with the Plan Administrator.
The Trustee and any persons employed to render advice or services may take
cognizance of any rules established by the Plan Administrator and rely upon them
until notified to the contrary. The Trustee and any persons employed to render
advice or services will be fully protected in taking any action upon any paper
or document believed to be genuine and to have been properly signed and
presented by the Plan Administrator, Plan Sponsor or any agent of the Plan
Administrator acting on behalf of the Plan Administrator.
9.05 REPORTS TO PARTICIPANTS
The Plan Administrator will report in writing to a Participant his Accrued
Benefit under the Plan and the Vested Percentage of such benefit when the
Participant terminates his employment or reasonably requests such a report in
writing from the Plan Administrator. To the extent required by law or
regulation, the Plan Administrator will annually furnish to each Participant,
and to each Beneficiary receiving benefits, a report that fairly summarizes the
Plan's most recent report.
9.06 BOND
The Plan Administrator and other fiduciaries of the Plan will be bonded to the
extent required by ERISA or other applicable law. No additional bond or other
security for the faithful performance of any duties under this Plan will be
required.
9.07 COMPENSATION OF PLAN ADMINISTRATOR
The Compensation of the Plan Administrator will be left to the discretion of the
Plan Sponsor; no person who is receiving full pay from the Employer will receive
compensation for services as Plan Administrator. All reasonable and necessary
expenses incurred by the Plan Administrator in supervising and administering the
Plan will be paid from the Plan assets by the Trustee at the direction of the
Plan Administrator to the extent directed by the Plan Sponsor.
9.08 CLAIMS PROCEDURE
The Plan Administrator will make all determinations as to the rights of any
Employee, Participant, Beneficiary or other person under the terms of this Plan.
Any Employee, Participant or Beneficiary, or person claiming under them, may
make claim for benefit under this Plan by filing written notice with the Plan
Administrator setting forth the substance of the claim. If a claim is wholly or
partially denied, the claimant will have the opportunity to appeal the denial
upon filing with the Plan Administrator a written request for review within 60
days after receipt of notice of denial. In making an appeal the claimant may
examine pertinent Plan documents and may submit issues and comments in writing.
Denial of a claim or a decision on review will be made in writing by the Plan
Administrator delivered to the claimant within 60 days after receipt of the
claim or request for review, unless special circumstances require an extension
of time for processing the claim or review, in which event the Plan
Administrator's decision must be made as soon as possible thereafter but not
beyond an additional 60 days. If no action on an initial claim is taken within
120 days, the claims will be deemed denied for purposes of permitting the
claimant to proceed to the review stage. The denial of a claim or the decision
on review will specify the reasons for the denial or decision and will make
reference to the pertinent Plan provisions upon which the denial or decision is
based. The denial of a claim will also include a description of any additional
material or information necessary for the claimant to perfect the claim and an
explanation of the claim review procedure herein described. The Plan
Administrator will serve as an agent for service of legal process with respect
to the Plan unless the Plan Sponsor, through Written Resolution, appoints
another agent.
9.09 UNCLAIMED BENEFITS
If a Participant or Beneficiary is entitled to a distribution from the Plan, the
Participant or Beneficiary will be responsible for providing the Plan
Administrator with his current address. If the Plan Administrator notifies the
Participant or Beneficiary by registered mail (return receipt requested) at his
last known address that he is entitled to a distribution and also notifies him
of the provisions of this paragraph, and the Participant or Beneficiary fails to
claim his benefits under the Plan or provide his current address to the Plan
Administrator within one year after such notification, the distributable amount
will be forfeited and used to reduce the cost of the Plan. If the Participant
or Beneficiary is subsequently located, such benefit will be restored.
9.10 FIDUCIARY RESPONSIBILITY
The Trustee will be solely responsible for its own acts or omissions. The
Trustee will not have duty to question any other fiduciary's performance of
duties allocated to such other fiduciary pursuant to the Plan. If the Plan
permits the appointment of additional trustees of separate Trust Funds under the
Plan, each will have no duties or responsibilities for Plan assets held by
another trustee.
Nothing contained in this Section will preclude any agreement allocating
specific responsibilities or obligations among the co-fiduciaries provided that
the agreement does not violate any of the terms and provisions of this Plan or
the requirements of applicable laws.
9.11 EXPENSES OF ADMINISTRATION
The Plan Sponsor does not and will not guarantee the Plan assets against loss.
The Plan Sponsor may in its sole discretion, but will not be obligated to, pay
the ordinary expenses of establishing the Plan, including the fees of
administrators, recordkeepers, consultants, accountants and attorneys in
connection therewith. The Plan Sponsor may, in its sole discretion (but will
not be obligated to), pay other costs and expenses of administering the Plan,
the taxes imposed upon the Plan, if any, and the fees, charges or commissions
with respect to the purchase and sale of Plan assets. Unless paid by the Plan
Sponsor, such costs and expenses, taxes (if any), and fees, charges and
commissions will be a charge upon Plan assets and deducted by the Trustee.
9.12 DISTRIBUTION AUTHORITY
If any person entitled to receive payment under this Plan is a minor, declared
incompetent or is under other legal disability, the Plan Administrator may, in
its sole discretion, direct the Trustee to:
(a) Distribute directly to the person entitled to the payment;
(b) Distribute to the legal guardian or, if none, to a parent of the person
entitled to payment or to a responsible adult with whom the person entitled to
payment maintains his residence;
(c) Distribute to a custodian for the person entitled to payment under the
Uniform Gifts to Minors Act if permitted by the laws of the state in which the
person entitled to payment resides; or
(d) Withhold distribution of the amount payable until a court of competent
jurisdiction determines the rights of the parties thereto or appoints a guardian
of the estate of the person entitled to payment.
If there is any dispute, controversy or disagreement between any Beneficiary or
person and any other person as to who is entitled to receive the benefits
payable under this Plan, or if the Plan Administrator is uncertain as to who is
entitled to receive benefits, or if the Plan Administrator is unable to locate
the person who is entitled to benefits, the Plan Administrator may with
acquittance interplead the funds into a court of competent jurisdiction in the
judicial district in which the Plan Sponsor maintains its principal place of
business and, upon depositing the funds with the clerk of the court, be released
from any further responsibility for the payment of the benefits. If it is
necessary for the Plan Administrator to retain legal counsel or incur any
expense in determining who is entitled to receive the benefits, whether or not
it is necessary to institute court action, the Plan Administrator will be
entitled to reimbursement from the benefits for the amount of its reasonable
costs, expenses and attorneys' fees incurred.
ARTICLE 10
LIMITATION ON CONTRIBUTIONS
10.01 LIMITATION ON ANNUAL ADDITIONS
The amount of the Annual Addition which may be allocated under this Plan to any
Participant's Account as of any Allocation Date will not exceed the Defined
Contribution Limit (based upon his Compensation up to such Valuation Date)
reduced by the sum of any allocations of Annual Additions made to Participant's
Accounts under this Plan as of any preceding Allocation Date within the
Limitation Year.
If the Annual Addition under this Plan on behalf of a Participant is to be
reduced as of any Allocation Date as a result of the next preceding paragraph,
the reduction will be, to the extent required, effected by first reducing
Participant contributions (which increase the Annual Addition), then Forfeitures
(if any), and then Employer contributions to be allocated under this Plan on
behalf of the Participant as of the Allocation Date.
Any necessary reduction will be made as follows:
(a) The amount of the reduction consisting of after-tax Participant
contributions and income allocable to such contributions will be paid to the
Participant as soon as administratively feasible.
(b) The amount of the reduction consisting of any other Participant
contributions and income allocable to such contributions will be paid to the
Participant as soon as administratively feasible.
(c) The amount of the reduction consisting of Forfeitures will be allocated
and reallocated to other Accounts in accordance with the Plan formula for
allocating Forfeitures to the extent that such allocations do not cause the
additions to any other Participant's Accounts to exceed the lesser of the
Defined Contribution Limit or any other limitation provided in the Plan.
(d) The amount of the reduction consisting of Employer contributions will be
allocated and reallocated to other Accounts in accordance with the Plan formula
for Employer Contributions to the extent that such allocations do not cause the
additions to any other Participant's Accounts to exceed the lesser of the
Defined Contribution Limit or any other limitation provided in the Plan.
(e) To the extent that the reductions described in paragraph (d) cannot be
allocated to other Participant's Accounts, the reductions will be allocated to a
suspense account as Forfeitures and held therein until the next succeeding
Allocation Date on which Forfeitures could be applied under the
provisions of the Plan. All amounts held in a suspense account must be
applied as Forfeitures before any additional contributions, which would
constitute Annual Additions, may be made to the Plan. If the Plan terminates,
the suspense account will revert to the Employer to the extent it
may not be allocated to any Participant's Accounts.
(f) If a suspense account is in existence at any time during a Limitation
Year pursuant to this Section, it will not participate in the allocation of the
Trust Fund's investment gains and losses.
10.02 WHERE EMPLOYER MAINTAINS ANOTHER QUALIFIED PLAN
(a) WHERE EMPLOYER MAINTAINS ANOTHER QUALIFIED DEFINED CONTRIBUTION PLAN
If the Employer maintains this Plan and one or more other qualified defined
contribution plans, one or more welfare benefit funds (as defined in Code
Section 419(e)), or one or more individual medical accounts (as defined in Code
Section 415(l)(2)), all of which are referred to in this Article 10 as
"qualified defined contribution plans," the Annual Additions allocated under
this Plan to any Participant's Accounts will be limited in accordance with the
allocation provisions of this Section 10.02(a).
The amount of the Annual Additions which may be allocated under this Plan to any
Participant's Accounts as of any Allocation Date will not exceed the Defined
Contribution Limit (based upon Compensation up to the allocation date) reduced
by the sum of any allocations of Annual Additions made to the Participant's
Accounts under this Plan and any other qualified defined contribution plans
maintained by the Employer as of any earlier Allocation Date within the
Limitation Year.
If an Allocation Date of this Plan coincides with an Allocation Date of any
other plan described in the foregoing paragraph, the amount of Annual Additions
to be allocated on behalf of a Participant under this Plan as of such date will
be an amount equal to the product of the amount described in the next preceding
paragraph multiplied by a fraction (not to exceed 1.0), the numerator of which
is the amount to be allocated under this Plan without regard to this Article
during the Limitation Year and the denominator of which is the amount that would
otherwise be allocated on this Allocation Date under all plans without regard to
this Article 10.
If the Annual Addition under this Plan on behalf of a Participant is to be
reduced as of any Allocation Date as a result of the next preceding two
paragraphs, the reduction will be, to the extent required, effected by first
reducing Participant contributions (which increase the Annual Addition) plus
applicable trust earnings, then Forfeitures (if any), and then any Employer
contributions plus applicable trust earnings, to be allocated under this Plan on
behalf of the Participant as of the Allocation Date.
If as a result of the first four paragraphs of this Section 10.02, the
allocation of additions is reduced, the reduction will be treated in the manner
described in the third paragraph of Section 10.01.
(b) WHERE EMPLOYER MAINTAINS A QUALIFIED DEFINED BENEFIT PLAN
If the Employer maintains (or has ever maintained), in addition to this Plan,
one or more qualified defined benefit plans, then for any Limitation Year
beginning before January 1, 2000, the Annual Additions allocated under this Plan
to any Participant's Accounts will be limited in accordance with the provisions
of Code Section 415(e), incorporating any transition rules that may apply to a
Participant's Accounts and including any adjustments that may be required for a
Limitation Year in which the Plan is determined to be Top Heavy and subject to
the requirements of Code Section 416.
10.03 DEFINITIONS APPLICABLE TO ARTICLE 10
(a) ALLOCATION DATE
Allocation Date means the date with respect to which all or a portion of
employer contributions, employee contributions and/or forfeitures are allocated
to participant accounts under a defined contribution plan.
(b) ANNUAL ADDITIONS
Annual Additions are the sum of the following amounts allocated to any defined
contribution plan maintained by the Employer (including voluntary contributions
to any defined benefit plan maintained by the Employer) on behalf of a
Participant for a Limitation Year:
All Employee and Employer contributions;
All reallocated forfeitures;
Contributions or forfeitures will be treated as Annual Additions regardless of
whether they constitute Excess Deferrals, Excess Contributions or Excess
Aggregate Contributions within the meaning of the regulations under Code Section
401(k) or 401(m) and regardless of whether they are corrected through
distribution or recharacterization. Excess deferrals distributed in accordance
with Treasury Regulation 1.402(g)-1(e)(2) or (3) are not Annual Additions.
(c) COMPENSATION
Except as otherwise provided in this Article 10, Compensation for purposes of
this Article is Compensation as defined in Section 1.05.
For Plan Years beginning on or after January 1, 1998, Compensation for purposes
of this Article 10 includes any amounts contributed by the Employer or any
Related Employer on behalf of any Employee pursuant to a salary reduction
agreement which are not includable in the gross income of the Employee due to
Code Section 125, 402(e)(3), 402(h), 402(k) or 403(b).
For Plan Years beginning prior to January 1, 1998, Compensation for purposes of
this Article 10 excludes any amounts contributed by the Employer or any Related
Employer on behalf of any Employee pursuant to a salary reduction agreement
which are not includable in the gross income of the Employee due to Code
Section 125, 402(e)(3), 402(h), 402(k) or 403(b).
For purposes of this Article 10, the period used to determine an Employee's
Compensation is the Limitation Year.
(d) DEFINED CONTRIBUTION LIMIT
The Defined Contribution Limit for a given Limitation Year is equal to the
lesser of (1) the Defined Contribution Compensation Limit, which is 25% of
Compensation applicable to the Limitation Year, or (2) the Defined Contribution
Dollar Limit, which, for calendar years after 1994 is $30,000. If a short
Limitation Year is created because of an amendment changing the Limitation Year
to a different 12 consecutive month period, the Defined Contribution Dollar
Limit is multiplied by a fraction, the numerator of which is equal to the number
of months in the short Limitation Year and the denominator of which is 12.
(e) EMPLOYER
The Employer is the Employer that adopts this Plan together with all Related
Employers. For this purpose, the definition of Related Employer in Section 1.09
of this Plan is modified by Code Section 415(h).
(f) LIMITATION YEAR
The Limitation Year will be the 12 consecutive month period which is specified
in Article 1 of this Plan and which is adopted for all qualified plans
maintained by the Plan Sponsor pursuant to a Written Resolution adopted by the
Plan Sponsor. In the event of a change in the Limitation Year, the additional
limitations of Treasury Regulation 1.415-2(b)(4)(iii) will also apply.
ARTICLE 11
NONDISCRIMINATION
11.01 HIGHLY COMPENSATED DEFINITIONS
(a) COMPENSATION
Except as otherwise provided in this paragraph, Compensation for purposes of
this Section 11.01 is Compensation as defined in Section 1.05.
For purposes of determining whether an Employee is a Highly Compensated
Employee, the period used to determine an Employee's Compensation is the Plan
Year.
(b) DETERMINATION YEAR
Determination Year means the Plan Year for which the determination of who is
Highly Compensated is being made.
(c) HIGHLY COMPENSATED EMPLOYEE
Highly Compensated Employee means any individual who is a Highly Compensated
Active Employee or a Highly Compensated Former Employee within the meaning of
Code Section 414(q) and the regulations thereunder.
(d) HIGHLY COMPENSATED ACTIVE EMPLOYEE
Highly Compensated Active Employee means any individual who:
During the Determination Year or the Lookback Year was at any time a 5-percent
Owner (within the meaning of Code Section 416(i)) of the Employer or any Related
Employer;
During the Lookback Year (i) received Compensation from the Employer and all
Related Employers in excess of $80,000 (or any greater amount determined by
regulations issued by the Secretary of the Treasury under Code Section 415(d));
and (ii), if the Plan Sponsor elects the application of this clause for such
Lookback Year by so specifying in an Appendix to this Plan, was in the Top-paid
Group for such Lookback Year.
(e) HIGHLY COMPENSATED FORMER EMPLOYEE
Highly Compensated Former Employee means any Former Employee who had a
Separation Year (within the meaning of Treasury Regulation 1.414(q)-1T Q&A-5)
and was a Highly Compensated Active Employee for either the Separation Year or
any Determination Year ending on or after the Employee's 55th birthday.
(f) HIGHLY COMPENSATED GROUP
Highly Compensated Group means all Highly Compensated Employees.
(g) LOOKBACK YEAR
Lookback Year means the 12-month period immediately preceding the Determination
Year.
(h) NON-HIGHLY COMPENSATED EMPLOYEE
Non-Highly Compensated Employee means an Employee who is not a Highly
Compensated Employee.
(i) NON-HIGHLY COMPENSATED GROUP
Non-Highly Compensated Group means all Non-Highly Compensated Employees.
(j) TOP-PAID GROUP
Top-Paid Group means those individuals who are among the top 20 percent of
Employees of the Employer and all Related Employers when ranked on the basis of
Compensation received during the year. In determining the number of individuals
in the Top-Paid Group (but not the identity of those individuals), the following
individuals may be excluded:
Employees who have not completed 6 months of Service by the end of the year.
For this purpose, an Employee who has completed One Hour of Service in any
calendar month will be credited with one month of Service;
Employees who normally work fewer than 17 hours per week;
Employees who normally work fewer than 6 months during any year. For this
purpose, an Employee who has worked on one day of a month is treated as having
worked for the whole month;
Employees who have not reached age 21 by the end of the year;
Nonresident aliens who received no earned income (which constitutes income from
sources within the United States) within the year from the Employer or any
Related Employer; and
Employees covered by a collective bargaining agreement negotiated in good faith
between the employee representatives and the Employer or a group of employers of
which the Employer is a member if (i) 90% or more of all employees of the
Employer and all Related Employers are covered by collective bargaining
agreements, and (ii) this Plan covers only Employees who are not covered under a
collective bargaining agreement.
11.02 NONDISCRIMINATION REQUIREMENTS UNDER CODE SECTIONS 401(K) AND 401(M)
(a) EFFECTIVE DATE
The provisions of this Article are effective on the later of the Effective Date
of the Plan or the first day of the first Plan Year beginning after December 31,
1996.
(b DEFINITIONS RELATING TO CODE SECTIONS 401(K) AND 401(M)
The following definitions apply to this Section:
(1) AGGREGATE LIMIT
With respect to a given Plan Year, Aggregate Limit means the greater of the sum
of [A + B] or the sum of [C + D] where:
A is equal to 125% of the greater of DP or CP;
B is equal to 2 percentage points plus the lesser of DP or CP, not to exceed 2
times the lesser of DP or CP;
C is equal to 125% of the lesser of DP or CP;
D is equal to 2 percentage points plus the greater of DP or CP, not to exceed 2
times the greater of DP or CP;
DP represents the Deferral Percentage for the Non-highly Compensated Group
eligible under the Cash or Deferred Arrangement for the Plan Year; and
CP represents the Contribution Percentage for the Non-highly Compensated Group
eligible under the plan providing for the Employee After-tax Contributions or
Employer Matching Contributions for the Plan Year beginning with or within the
Plan Year of the Cash or Deferred Arrangement.
(2) CASH OR DEFERRED ARRANGEMENT (CODA)
A Cash or Deferred Election is any election (or modification of an earlier
election) by an Employee to have the Employer either:
(A) provide an amount to the Employee in the form of cash or some other taxable
benefit that is not currently available, or
(B) contribute an amount to the Plan (or provide an accrual or other benefit)
hereby deferring receipt of Compensation.
A Cash or Deferred Election will only be made with respect to an amount that is
not currently available to the Employee on the date of election. Further, a
Cash or Deferred Election will only be made with respect to amounts that would
have (but for the Cash or Deferred Election) become currently available after
the later of the date on which the Employer adopts the Cash or Deferred
Arrangement or the date on which the arrangement first becomes effective.
A Cash or Deferred Election does not include a one-time irrevocable election
upon the Employee's commencement of employment or first becoming an Eligible
Employee.
(3) COMPENSATION
Except as otherwise provided in this paragraph, Compensation for purposes of
this Section 11.02 is Compensation as defined in Section 1.05.
For purposes of this Section 11.02, the period used to determine an Employee's
Compensation for a Plan Year is limited to that portion of the Plan Year in
which the Employee was an Eligible Employee.
(4) CONTRIBUTION PERCENTAGE
Contribution Percentage means, for any specified group, the average of the
ratios calculated (to the nearest one-hundredth of one percent) separately for
each Participant in the group, of the amount of Employee After-tax Contributions
and Matching Contributions which are made by or on behalf of each Participant
for a Plan Year to each Participant's Compensation for the Plan Year.
For purposes of determining the Contribution Percentage, each Employee who is
eligible under the terms of the Plan to make or to have contributions made on
his behalf is treated as a Participant. The Contribution Percentage of an
eligible Employee who makes no Employee After-tax Contribution and receives no
Matching Contribution is zero.
The Contribution Percentage of a Participant who is a Highly Compensated
Employee for the Plan Year and who is eligible to make Employee After-tax
Contributions or receive an allocation of Matching Contributions (including
Elective Contributions and Nonelective Contributions which are treated as
Employee or Matching Contributions for purposes of the Contribution Percentage
Test) allocated to his accounts under two or more plans which are sponsored by
the Employer will be determined as if the Employee After-tax and Matching
Contributions were made under a single plan. For purposes of this paragraph, if
a Highly Compensated Employee participates in two or more such plans which have
different Plan Years, all plans ending with or within the same calendar year
will be treated as a single plan.
(5) CONTRIBUTION PERCENTAGE TEST
The Contribution Percentage Test is a test applied on a Plan Year basis to
determine whether a plan meets the requirements of Code Section 401(m).
In each of the following tests, the Contribution Percentage for the Highly
Compensated Group for a Plan Year is compared with the Contribution Percentage
for the Non-highly Compensated Group for the current Plan Year (or the preceding
Plan Year if so elected by the Employer in an Appendix to this Plan; provided,
however, that if such an election is made, it will be made in accordance with
regulations issued by the Secretary of the Treasury).
In the case of the first Plan Year of the Plan (if this is not a successor plan
within the meaning of Treasury Regulation 1.401(k)-1(d)(3)), the Contribution
Percentage for the Non-highly Compensated Group will be the Contribution
Percentage for the Non-highly Compensated Group for the first Plan Year or, if
the Employer elects to use 3% as the Deferral Percentage for the first Plan
Year, the Contribution Percentage that would result if the Deferral Percentage
for each Non-highly Compensated Participant were 3%.
The Contribution Percentage Test may be met by either satisfying the General
Contribution Percentage Test or the Alternative Contribution Percentage Test.
The General Contribution Percentage Test is satisfied if the Contribution
Percentage for the Highly Compensated Group does not exceed 125% of the
Contribution Percentage for the Non-highly Compensated Group.
The Alternative Contribution Percentage Test is satisfied if the Contribution
Percentage for the Highly Compensated Group does not exceed the lesser of:
(A) the Contribution Percentage for the Non-highly Compensated Group plus 2
percentage points, or
(B) the Contribution Percentage for the Non-highly Compensated Group multiplied
by 2.0.
If (i) one or more Highly Compensated Employees of the Employer or any Related
Employer are eligible to participate in both a Cash or Deferred Arrangement and
a plan which provides for Employee After-tax Contributions or Matching
Contributions, (ii) the Deferral Percentage for the Highly Compensated Group
does not satisfy the General Deferral Percentage Test, and (iii) the
Contribution Percentage for the Highly Compensated Group does not satisfy the
General Contribution Percentage Test, then the Contribution Percentage Test will
be deemed to be satisfied only if the sum of the Deferral Percentage and the
Contribution Percentage for the Highly Compensated Group does not exceed the
Aggregate Limit.
The Plan will not fail to satisfy the Contribution Percentage test merely
because all of the Eligible Employees under the Plan for a Plan Year are Highly
Compensated Employees.
(6) DEFERRAL PERCENTAGE
Deferral Percentage means, for any specified group, the average of the ratios
calculated (to the nearest one-hundredth of one percent) separately for each
Participant in the group, of the amount of Elective Contributions which are made
on behalf of each Participant for a Plan Year to each Participant's Compensation
for the Plan Year.
For purposes of determining the Deferral Percentage, each Employee who is
eligible under the terms of the Plan to have contributions made on his behalf is
treated as a Participant. The Deferral Percentage of an eligible Employee who
makes no Elective Contribution is zero.
The Deferral Percentage of a Participant who is a Highly Compensated Employee
for the Plan Year and who is eligible to have Elective Contributions (including
Nonelective Contributions or Matching Contributions which are treated as
Elective Contributions for purposes of the Deferral Percentage Test) allocated
to his accounts under two or more Cash or Deferred Arrangements which are
maintained by the Employer will be determined as if the Elective Contributions
were made under a single Arrangement. For purposes of this paragraph, if a
Highly Compensated Employee participates in two or more Cash or Deferred
Arrangements which have different Plan Years, all Cash or Deferred Arrangements
ending with or within the same calendar year will be treated as a single
Arrangement.
(7) DEFERRAL PERCENTAGE TEST
The Deferral Percentage Test is a test applied on a Plan Year basis to determine
whether a plan meets the requirements of Code Section 401(k).
In each of the following tests, the Deferral Percentage for the Highly
Compensated Group for a Plan Year is compared with the Deferral Percentage for
the Non-highly Compensated Group for the current Plan Year (or the preceding
Plan Year if elected by the Employer in an Appendix to this Plan; provided,
however, that if such an election is made, it will be made in accordance with
regulations issued by the Secretary of the Treasury).
In the case of the first Plan Year of the Plan (if this is not a successor plan
within the meaning of Treasury Regulation 1.401(k)-1(d)(3)), the Deferral
Percentage for the Non-highly Compensated Group will be 3%, or, if elected by
the Employer, the actual Deferral Percentage for the Non-highly Compensated
Group for the first Plan Year.
The Deferral Percentage Test may be met by either satisfying the General
Deferral Percentage Test or the Alternative Deferral Percentage Test.
The General Deferral Percentage Test is satisfied if the Deferral Percentage for
the Highly Compensated Group does not exceed 125% of the Deferral Percentage for
the Non-highly Compensated Group.
The Alternative Deferral Percentage Test is satisfied if the Deferral Percentage
for the Highly Compensated Group does not exceed the lesser of:
(A) the Deferral Percentage for the Non-highly Compensated Group plus 2
percentage points, or
(B) the Deferral Percentage for the Non-highly Compensated Group multiplied
by 2.0.
If (i) one or more Highly Compensated Employees of the Employer or any Related
Employer are eligible to participate in both a Cash or Deferred Arrangement and
a plan which provides for Employee After-tax Contributions or Matching
Contributions, (ii) the Deferral Percentage for the Highly Compensated Group
does not satisfy the General Deferral Percentage Test, and (iii) the
Contribution Percentage for the Highly Compensated Group does not satisfy the
General Contribution Percentage Test, then the Deferral Percentage Test will be
deemed to be satisfied only if the sum of the Deferral Percentage and the
Contribution Percentage for the Highly Compensated Group does not exceed the
Aggregate Limit.
The Plan will not fail to satisfy the Deferral Percentage test merely because
all of the Eligible Employees under the Plan for a Plan Year are Highly
Compensated Employees.
(8) ELECTIVE CONTRIBUTION
Elective Contribution means any contribution made by the Employer to a Cash or
Deferred Arrangement on behalf of and at the election of an Employee. An
Elective Contribution will be taken into account for a given Plan Year only if:
(A) The Elective Contribution is allocated to the Participant's Account as
of a date within the Plan Year to which it relates;
(B) The allocation is not contingent upon the Employee's participation in
the Plan or performance of services on any date after the allocation date;
(C) The Elective Contribution is actually paid to the trust no later than 12
months after the end of the Plan Year to which the Elective Contribution
relates; and
(D) The Elective Contribution relates to Compensation which either (i) but
for the Participant's election to defer, would have been received by the
Participant in the Plan Year or (ii) is attributable to services performed by
the Participant in the Plan Year and, but for the Participant's election to
defer, would have been received by the Participant within two and one-half
months after the close of the Plan Year.
Elective Contributions will be treated as Employer Contributions for purposes of
Code Sections 401(a), 401(k), 402(a), 404, 409, 411, 412, 415, 416, and 417.
(9) ELECTIVE DEFERRAL
Elective Deferral means the sum of the following:
(A) Any Elective Contribution to any Cash or Deferred Arrangement to the
extent it is not includable in the Participant's gross income for the taxable
year of contribution;
(B) Any employer contribution to a simplified employee pension as defined in
Code Section 408(k) to the extent not includable in the Participant's gross
income for the taxable year of contribution;
(C) Any employer contribution to an annuity contract under Code Section
403(b) under a salary reduction agreement to the extent not includable in the
Participant's gross income for the taxable year of contribution; plus
(D) Any employee contribution designated as deductible under a trust
described in Code Section 501(c)(18) for the taxable year of contribution.
(10) ELIGIBLE EMPLOYEE
Eligible Employee means an Employee who is directly or indirectly eligible to
make a Cash or Deferred Election under the Plan for all or a portion of the Plan
Year. An Employee who is unable to make a Cash or Deferred Election because the
Employee has not contributed to another plan is also an Eligible Employee. An
Employee who would be eligible to make Elective Contributions but for a
suspension due to a distribution, a loan, or an election not to participate in
the Plan, is treated as an Eligible Employee for purposes of Code Section
401(k)(3) and 401(m) for a Plan Year even though the Employee may not make a
Cash or Deferred Election due to the suspension. Also, an Employee will not
fail to be treated as an Eligible Employee merely because the employee may
receive no additional Annual Additions because of Code Section 415(c)(1) or
415(e).
(11) EMPLOYEE AFTER-TAX CONTRIBUTION
Employee After-tax Contribution means any contribution made by an Employee to
any plan maintained by the Employer or any Related Employer which is other than
an Elective Contribution and which is designated or treated at the time of
contribution as an after-tax contribution. Employee After-tax Contributions
include amounts attributable to Excess Contributions which are recharacterized
as Employee After-tax Contributions.
(12) EXCESS CONTRIBUTION
Excess Contribution means, for each member of the Highly Compensated Group, the
amount of Elective Contribution (including any Qualified Nonelective
Contributions and Qualified Matching Contributions which are treated as Elective
Contributions) which exceeds the maximum contribution which could be made if the
Deferral Percentage Test were to be satisfied.
(13) EXCESS AGGREGATE CONTRIBUTION
Excess Aggregate Contribution means, for each member of the Highly Compensated
Group, the amount of Employee After-tax and Matching Contributions (including
any Qualified Nonelective Contributions and Elective Contributions which are
treated as Matching Contributions) which exceeds the maximum contribution which
could be made if the Contribution Percentage Test were to be satisfied.
(14) EXCESS DEFERRAL
Excess Deferral means, for a given calendar year, that amount by which each
Participant's total Elective Deferrals under all plans of all employers exceed
the dollar limit in effect under Code Section 402(g) for the calendar year.
(15) MATCHING CONTRIBUTION
Matching Contribution means any contribution made by the Employer to any plan
maintained by the Employer or any Related Employer which is based on an Elective
Contribution or an Employee After-tax Contribution together with any forfeiture
allocated to the Participant's Account on the basis of Elective Contributions,
Employee After-tax Contributions or Matching Contributions. A Matching
Contribution will be taken into account for a given Plan Year only if:
(A) The Matching Contribution is allocated to a Participant's Account as of
a date within the Plan Year to which it relates;
(B) The allocation is not contingent upon the Employee's participation in
the Plan or performance of services on any date after the allocation date;
(C) The Matching Contribution is actually paid to the Trust no later than 12
months after the end of the Plan Year to which the Matching Contribution
relates; and
(D) The Matching Contribution is based on an Elective or Employee After-tax
Contribution for the Plan Year.
Any contribution or allocation, other than a Qualified Nonelective Contribution,
which is used to meet the minimum contribution or benefit requirement of Code
Section 416 is not treated as being based on Elective Contributions or Employee
After-tax Contributions and therefore is not treated as a Matching Contribution.
Qualified Matching Contribution means a Matching Contribution which is 100%
vested and may be withdrawn or distributed only under the conditions described
in Treasury Regulation 1.401(k)-1(d).
(16) NONELECTIVE CONTRIBUTION
Nonelective Contribution means any Employer contribution, other than a Matching
Contribution, which meets all of the following requirements:
(A) The Nonelective Contribution is allocated to a Participant's Account as
of a date within the Plan Year to which it relates;
(B) The allocation is not contingent upon the Employee's participation in
the Plan or performance of services on any date after the allocation date;
(C) The Nonelective Contribution is actually paid to the Trust no later than
12 months after the end of the Plan Year to which the Nonelective Contribution
relates; and
(D) The Employee may not elect to have the Nonelective Contribution paid in
cash in lieu of being contributed to the Plan.
Qualified Nonelective Contribution means a Nonelective Contribution which is
100% vested and may be withdrawn or distributed only under the conditions
described in Treasury Regulation 1.401(k)-1(d).
(c) APPLICATION OF DEFERRAL PERCENTAGE TEST
All Elective Contributions, including any Elective Contributions which are
treated as Employee After-tax or Matching Contributions with respect to the
Contribution Percentage Test, must satisfy the Deferral Percentage Test.
Furthermore, any Elective Contributions which are not treated as Employee
After-tax or Matching Contributions with respect to the Contribution Percentage
Test must satisfy the Deferral Percentage Test. The Plan Administrator will
determine as soon as administratively feasible after the end of the Plan Year
whether the Deferral Percentage Test has been satisfied. If the Deferral
Percentage Test is not satisfied, the Employer may elect to make an additional
contribution to the Plan on account of the Non-highly Compensated Group. The
additional contribution will be treated as a Nonelective Contribution.
If the Deferral Percentage Test is not satisfied after any Nonelective
Contributions, the Plan Administrator may, in its sole discretion,
recharacterize all or any portion of the Excess Contribution of each Highly
Compensated Employee as an Employee After-tax Contribution if Employee After-tax
Contributions are otherwise allowed by the Plan. If so, the Plan Administrator
will notify all affected Participants and the Internal Revenue Service of the
amount recharacterized no later than the 15th day of the third month following
the end of the Plan Year in which the Excess Contribution was made. Excess
Contributions will be includable in the Participant's gross income on the
earliest date any Elective Contribution made on behalf of the Participant during
the Plan Year would have been received by the Participant had the Participant
elected to receive the amount in cash. Recharacterized Excess Contributions
will continue to be treated as Employer contributions that are Elective
Contributions for all other purposes under the Code, including Code Sections
401(a) (other than 401(a)(4) and 401(m)), 404, 409, 411, 412, 415, 416, 417 and
401(k)(2). With respect to the Plan Year for which the Excess Contribution was
made, the Plan Administrator will treat the recharacterized amount as an
Employee After-tax Contribution for purposes of the Deferral Percentage Test and
the Contribution Percentage Test and for purposes of determining whether the
Plan meets the requirements of Code Section 401(a)(4), but not for any other
purposes under this Plan. Therefore, recharacterized amounts will remain
subject to the nonforfeiture requirements and distribution limitations which
apply to Elective Contributions.
If the Deferral Percentage Test is still not satisfied, then after the close of
the Plan Year in which the Excess Contribution arose but within 12 months after
the close of that Plan Year, the Plan Administrator will distribute the Excess
Contributions, together with allocable income, to Participants of the Highly
Compensated Group to the extent necessary to satisfy the Deferral Percentage
Test. Failure to do so will cause the Plan to not satisfy the requirements of
Code Section 401(a)(4) for the Plan Year for which the Excess Contribution was
made and for all subsequent Plan Years for which the Excess Contribution remains
uncorrected.
The amount of Excess Contribution to be distributed to a Highly Compensated
Employee for a Plan Year will be reduced by any Excess Deferrals previously
distributed to the Participant for the calendar year ending with or within the
Plan Year in accordance with Code Section 402(g)(2).
Excess Contributions will be treated as Employer contributions for purposes of
Code Sections 404 and 415 even if distributed from the Plan.
(d) APPLICATION OF CONTRIBUTION PERCENTAGE TEST
Employee After-tax Contributions and Matching Contributions, disregarding any
Matching Contributions which are treated as Elective Contributions with respect
to the Deferral Percentage Test, must satisfy the Contribution Percentage Test.
The Plan Administrator will determine as soon as administratively feasible after
the end of the Plan Year whether the Contribution Test has been satisfied. If
the Contribution Percentage Test is not satisfied, the Employer may elect to
make an additional contribution to the Plan for the benefit of the Non-Highly
Compensated Group. The additional contribution will be treated as a Nonelective
Contribution.
If the Contribution Percentage Test is still not satisfied, then after the close
of the Plan Year in which the Excess Aggregate Contribution arose but within 12
months after the close of that Plan Year, the Plan Administrator will distribute
(or forfeit, to the extent not vested) the Excess Aggregate Contributions,
together with allocable income, to Participants of the Highly Compensated Group
to the extent necessary to satisfy the Contribution Percentage Test. Failure to
do so will cause the Plan to not satisfy the requirements of Code Section
401(a)(4) for the Plan Year for which the Excess Aggregate Contribution was made
and for all subsequent Plan Years for which the Excess Aggregate Contribution
remains uncorrected.
The determination of any Excess Aggregate Contributions will be made after the
recharacterization of any Excess Contributions as Employee After-tax
Contributions.
Excess Aggregate Contributions, including forfeited Matching Contributions, will
be treated as Employer contributions for purposes of Code Sections 404 and 415
even if they are distributed from the Plan.
Forfeited Matching Contributions that are reallocated to the Accounts of other
Participants are treated as Annual Additions under Code Section 415 for the
Participant whose Accounts they are reallocated to and for the Participants from
whose Accounts they are forfeited.
(e) REDUCTION OF EXCESS AMOUNTS
For the purpose of determining the total amounts of Excess Contributions and/or
Excess Aggregate Contributions to be recharacterized, returned to Participants
or forfeited as the case may be, the total Excess Contribution or total Excess
Aggregate Contribution will be reduced in a manner so that the Deferral
Percentage or the Contribution Percentage (Relevant Percentage) of the affected
Participant(s) with the highest Relevant Percentage will first be lowered to a
point not less than the level of the affected Participant(s) with the next
highest Relevant Percentage. If further overall reductions are required to
satisfy the relevant test, each of the above Participants' (or groups of
Participants') Relevant Percentage will be lowered to a point not less than the
level of the affected Participant(s) with the next highest Relevant Percentage,
and so on continuing until sufficient total reductions have occurred to achieve
satisfaction of the relevant test.
The total Excess Contributions or Excess Aggregate Contributions so determined
will then be recharacterized, returned to Participants or forfeited in such a
manner that the amount of such contributions allocated to the Highly Compensated
Participant(s) by or for whom the highest amount of such contributions have been
made during the Plan Year will first be lowered to an amount not less than the
amount made by or for the Highly Compensated Participant with the next highest
amount of such contributions made during the Plan Year. If further reductions
are required to reduce the accounts of Highly Compensated Participants by the
total of all Excess Contributions or Excess Aggregate Contributions, each of the
above Participant's relevant contributions will be lowered to a point not less
than the level of the Highly Compensated Participant with the next highest
amount of such contributions made during the Plan Year, and so on, continuing
until sufficient total reductions have been made to equal the total amount of
Excess Contributions and/or excess Aggregate Contributions as the case may be.
(f) PRIORITY OF REDUCTIONS
The Plan Administrator will determine the method and order of correcting Excess
Contributions and Excess Aggregate Contributions. The method of correcting
Excess Contributions and Excess Aggregate Contributions must meet the
requirements of Code Section 401(a)(4). The determination of whether a rate of
Matching Contribution discriminates under Code Section 401(a)(4) will be made
after making any corrective distributions of Excess Deferrals, Excess
Contributions and Excess Aggregate Contributions.
Excess Aggregate Contributions (and any attributable income) will be corrected
first, by distributing any excess Employee After-tax Contributions (and any
attributable income); then by distributing vested excess Matching Contributions
(and any attributable income); and finally, by forfeiting or distributing
non-vested Matching Contributions (and any attributable income). The Plan will
not distribute Employee After-tax Contributions while the Matching Contributions
based upon those Employee After-tax Contributions remain allocated.
(g) INCOME
The income allocable to any Excess Contribution made to a given Account for a
given Plan Year will be equal to the total income allocated to the Account for
the Plan Year, multiplied by a fraction, the numerator of which is the amount of
the Excess Contribution and the denominator of which is equal to the sum of the
balance of the Account at the beginning of the Plan Year plus the Participant's
Elective Contributions and amounts treated as Elective Contributions for the
Plan Year.
The income allocable to any Excess Aggregate Contribution made to a given
Account for a given Plan Year will be equal to the total income allocated to the
Account for the Plan Year, multiplied by a fraction, the numerator of which is
the amount of the Excess Aggregate Contribution and the denominator of which is
equal to the sum of the balance of the Account at the beginning of the Plan Year
plus the Participant's Employee After-tax and Matching Contributions and amounts
treated as Employee After-tax and Matching Contributions for the Plan Year.
Notwithstanding the foregoing, the Plan may use any reasonable method for
computing the income allocable to any Excess Contribution or Excess Aggregate
Contribution provided the method does not violate Code Section 401(a)(4), is
used consistently for all corrective distributions under the Plan for the Plan
Year, and is used by the Plan for allocating income to the Participants'
Accounts.
Income includes all earnings and appreciation, including interest, dividends,
rents, royalties, gains from the sale of property, and appreciation in the value
of stocks, bonds, annuity and life insurance contracts and other property,
regardless of whether the appreciation has been realized.
(h) ALLOCATION OF QUALIFIED MATCHING CONTRIBUTIONS.
To the extent that the Employer designates all or any portion of contributions
for the Plan Year as a Qualified Matching Contribution as defined in Section
11.02(b), such contribution will be allocated to the Employee Accounts of all
eligible Participants by the ratio which each eligible Participant's Employee
Contributions for the Plan Year which are not in excess of 6% of the
Participant's Compensation for the Plan Year bears to the total of all eligible
Participants' Employee Contributions for the Plan Year that do not exceed 6% of
each Participant's Compensation for the Plan Year.
(i) ALLOCATION OF QUALIFIED NON-ELECTIVE CONTRIBUTIONS.
To the extent that the Employer designates all or any portion of contributions
for the Plan Year as a Qualified Non-elective Contribution as defined in Section
11.02(b), such contribution will be allocated to the Employee Accounts of some
or all eligible Participant(s) (i) beginning with such eligible Participant(s)
who have the lowest testing Compensation as defined in Section 11.02(b), until
such eligible Participant(s) reach their Defined Contribution Limit as defined
in Section 10.03(d), or the amount designated as Qualified Non-elective
Contribution is fully allocated; and then (ii) continuing with successive
eligible Participants or groups of eligible Participants in the same manner
until the amount of the Qualified Non-elective Contribution is fully allocated.
(j) TREATMENT AS ELECTIVE CONTRIBUTIONS
The Plan Administrator may, in its discretion, treat all or any portion of
Qualified Nonelective Contributions or Qualified Matching Contributions or both,
whether to this Plan or to any other qualified plan which has the same Plan Year
and is maintained by the Employer or a Related Employer, as Elective
Contributions for purposes of satisfying the Deferral Percentage Test if they
meet all of the following requirements:
(1) All Nonelective Contributions, including the Qualified Nonelective
Contributions treated as Elective Contributions for purposes of the Deferral
Percentage Test, satisfy the requirements of Code Section 401(a)(4);
(2) Any Nonelective Contributions which are not treated as Elective
Contributions for purposes of the Deferral Percentage Test or as Matching
Contributions for purposes of the Contribution Percentage Test satisfy the
requirements of Code Section 401(a)(4);
(3) The Qualified Matching Contributions which are treated as Elective
Contributions for purposes of the Deferral Percentage Test are not taken into
account in determining whether any Employee After-tax Contributions or other
Matching Contributions satisfy the Contribution Percentage Test;
(4) Any Matching Contributions which are not treated as Elective
Contributions for purposes of the Deferral Percentage Test satisfy the
requirements of Code Section 401(m); and
(5) The plan which includes the Cash or Deferred Arrangement and the plan or
plans to which the Qualified Nonelective Contributions and Qualified Matching
Contributions are made could be aggregated for purposes of Code Section 410(b).
(k) TREATMENT AS MATCHING CONTRIBUTIONS
The Plan Administrator may, in its discretion, treat all or any portion of
Qualified Nonelective Contributions or Elective Contributions or both, whether
to this Plan or to any other qualified plan which has the same Plan Year and is
maintained by the Employer or a Related Employer, as Matching Contributions for
purposes of satisfying the Contribution Percentage Test if they meet all of the
following requirements:
(1) All Nonelective Contributions, including the Qualified Nonelective
Contributions treated as Matching Contributions for purposes of the Contribution
Percentage Test, satisfy the requirements of Code Section 401(a)(4);
(2) Any Nonelective Contributions which are not treated as Elective
Contributions for purposes of the Deferral Percentage Test or as Matching
Contributions for purposes of the Contribution Percentage Test satisfy the
requirements of Code Section 401(a)(4);
(3) The Elective Contributions which are treated as Matching Contributions
for purposes of the Contribution Percentage Test are not taken into account in
determining whether any other Elective Contributions satisfy the Deferral
Percentage Test;
(4) The Qualified Nonelective Contributions and Elective Contributions which
are treated as Matching Contributions for purposes of the Contribution
Percentage Test are not taken into account in determining whether any other
contributions or benefits satisfy Code Section 401(a);
(5) All Elective Contributions, including those treated as Matching
Contributions for purposes of the Contribution Percentage Test, satisfy the
requirements of Code Section 401(k)(3); and
(6) The plan that takes Qualified Nonelective Contributions and Elective
Contributions into account in determining whether Employee After-tax and
Matching Contributions satisfy the requirements of Code Section 401(m)(2)(A) and
the plan or plans to which the Qualified Nonelective Contributions and Elective
Contributions are made could be aggregated for purposes of Code Section 410(b).
(l) AGGREGATION OF PLANS
If the Employer or a Related Employer sponsors one or more other plans which
include a Cash or Deferred Arrangement, the Employer may elect to treat any two
or more of such plans as an aggregated single plan for purposes of satisfying
Code Sections 401(a)(4), 401(k) and 410(b). The Cash or Deferred Arrangements
included in such aggregated plans will be treated as a single Arrangement for
purposes of this Section. However, only those plans that have the same plan
year may be so aggregated.
If the Employer or a Related Employer sponsors one or more other plans to which
Employee After-tax Contributions or Matching Contributions are made, the
Employer may elect to treat any two or more of such plans as an aggregated
single plan for purposes of satisfying Code Sections 401(a)(4), 401(m) and
410(b). However, only those plans that have the same plan year may be so
aggregated.
Any such aggregation must be made in accordance with Treasury Regulation
1.401(k)-1(b)(3). For example, contributions and allocations under the portion
of a plan described in Code Section 4975(e)(7) (an ESOP) may not be aggregated
with the portion of a plan not described in Code Section 4975(e)(7) (a non-ESOP)
for purposes of determining whether the ESOP or non-ESOP satisfies the
requirements of Code Sections 401(a)(4), 401(k), 401(m) and 410(b).
Plans that could be aggregated under Code Section 410(b) but that are not
actually aggregated for a Plan Year for purposes of Code Section 410(b) may not
be aggregated for purposes of Code Sections 401(k) and 401(m).
11.03 FAILURE TO MEET MINIMUM COVERAGE REQUIREMENTS
The Employer may elect to suspend the requirements to share in the allocation of
a contribution for a given Contribution Period if, for a given Plan Year, the
Plan fails to satisfy the coverage requirements of Code Section 410(b). The
election can be made independently for any or all of the Accounts in the Article
3.
If this paragraph applies for a Plan Year, the Employer will suspend the
requirements to share in the allocation of a contribution for a given
Contribution Period for the Employees who are Participants, beginning first with
Employees employed with the Employer on the last day of the Plan Year, followed,
if necessary to satisfy the coverage requirements of Code Section 410(b), with
Employees who have separated from service during the Plan Year. Within each
such class of Employees, the Employer will suspend the requirements, beginning
with the Employee in that class with the lowest Compensation and continuing to
suspend in ascending order, ranked by Compensation, until the Plan satisfies the
coverage requirements under Code Section 410(b) for the Plan Year. If two or
more Employees in a class have the same Compensation, the Employer will suspend
the requirements to share in the allocation of the contribution for all such
Employees, irrespective of whether the Plan can satisfy the coverage
requirements by accruing benefits for fewer than all such Employees.
ARTICLE 12
TOP-HEAVY PROVISIONS
12.01 TOP-HEAVY DEFINITIONS
(a) AGGREGATE ACCOUNT
Aggregate Account means, with respect to each Participant, the value of all
accounts maintained on behalf of the Participant, whether attributable to
Employer or Employee contributions, used to determine Top-Heavy Plan status
under the provisions of a defined contribution plan. A Participant's Aggregate
Account as of the Determination Date will be the sum of:
(1) the balance of his Account(s) as of the most recent valuation date
occurring within a 12-month period ending on the Determination Date (excluding
any amounts attributable to deductible voluntary employee contributions); plus
(2) contributions that would be allocated as of a date not later than the
Determination Date, even though those amounts are not yet made or required to be
made; plus
(3) any Plan Distributions made within the Plan Year that includes the
Determination Date or within the four preceding Plan Years.
(b) AGGREGATION GROUP
Aggregation Group means either a Required Aggregation Group or a Permissive
Aggregation Group as hereinafter determined.
(1) REQUIRED AGGREGATION GROUP
Each plan of the Employer in which a Key Employee is a Participant, and each
other plan of the Employer which enables any plan in which a Key Employee
participates to meet the requirements of Code Section 401(a)(4) or 410, will be
aggregated, and the resulting group will be known as a Required Aggregation
Group.
Each plan in the Required Aggregation Group will be considered a Top-Heavy Plan
if the Required Aggregation Group is a Top-Heavy Group. No plan in the Required
Aggregation Group will be considered a Top-Heavy Plan if the Required
Aggregation Group is not a Top-Heavy Group.
(2) PERMISSIVE AGGREGATION GROUP
The Employer may also include any other plan not required to be included in the
Required Aggregation Group, provided the resulting group (to be known as a
Permissive Aggregation Group), taken as a whole, would continue to satisfy the
provisions of Code Sections 401(a)(4) and 410.
Only a plan that is part of the Required Aggregation Group will be considered a
Top-Heavy Plan if the Permissive Aggregation Group is a Top-Heavy Group. No
plan in the Permissive Aggregation Group will be considered a Top-Heavy Plan if
the Permissive Aggregation Group is not a Top-Heavy Group.
Only those plans of the Employer in which the Determination Dates fall within
the same calendar year will be aggregated in order to determine whether the
plans are Top-Heavy Plans.
(c) DETERMINATION DATE
Determination Date means the last day of the preceding Plan Year, or, in the
case of the first Plan Year, the last day of the first Plan Year.
(d) KEY EMPLOYEE
Key Employee means any Employee or former Employee (and his Beneficiary) who, at
any time during the Plan Year or any of the preceding four Plan Years, was:
(1) A "Five Percent Owner" of the Employer. "Five Percent Owner" means any
person who owns (or is considered as owning within the meaning of Code Section
318) more than 5% of the value of the outstanding stock of the Employer or
stock possessing more than 5% of the total combined voting power of all stock of
the Employer. If the Employer is not a corporation, Five Percent Owner means
any person who owns more than 5% of the capital or profits interest in the
Employer. In determining percentage ownership hereunder, Related Employers will
be treated as separate Employers; or
(2) A "One Percent Owner" of the Employer having Compensation from the
Employer of more than $150,000. "One Percent Owner" means any person who owns
(or is considered as owning within the meaning of Code Section 318) more than 1%
of the value of the outstanding stock of the Employer or stock possessing more
than 1% of the total combined voting power of all stock of the Employer. If the
Employer is not a corporation, One Percent Owner means any person who owns more
than 1% of the capital or profits interest in the Employer. In determining
percentage ownership hereunder, Related Employers will be treated as separate
Employers. However, in determining whether an individual has Compensation of
more than $150,000, Compensation from each Related Employer will be taken into
account.
(3) One of the 10 Employees having Compensation not less than the Defined
Contribution Dollar Limit (as defined in Section 10.03(j) for the Plan Year) who
owns (or is considered as owning within the meaning of Code Section 318) both
greater than 1/2% interest and the largest interests in all Employers required
to be aggregated under Code Sections 414(b), (c), (m) and (o);
(4) An officer (within the meaning of the regulations under Code Section
416) of the Employer having Compensation greater than 50% of the defined benefit
dollar limit as defined in Code Section 415(b) for the Plan Year;
For purposes of determining whether an Employee is a Key Employee, the period
used to determine an Employee's Compensation is the Plan Year.
(e) NON-KEY EMPLOYEE
Non-Key Employee means any Employee (and his Beneficiaries) who is not a Key
Employee.
(f) PLAN DISTRIBUTIONS
Plan distributions include distributions made before January 1, 1984, and
distributions under a terminated plan which, if it had not been terminated,
would have been required to be included in an aggregation group. However,
distributions made after the valuation date and before the Determination Date
are not included to the extent that they are already included in the
Participant's Single Sum Benefit as of the valuation date.
With respect to "unrelated" rollovers and plan-to-plan transfers (those which
are both initiated by an employee and made from a plan maintained by one
employer to a plan maintained by another employer), if such a rollover or
plan-to-plan transfer is made from this Plan, it will be considered as a
distribution for purposes of this Section. If such a rollover or plan-to-plan
transfer is made to this Plan, it will not be considered as part of the
Participant's Single Sum Benefit. However, an unrelated rollover or
plan-to-plan transfer accepted before January 1, 1984, will be considered as
part of the Participant's Single Sum Benefit.
With respect to "related" rollovers and plan-to-plan transfers (those which are
either not initiated by an employee or are made from one plan to another plan
maintained by the same employer), if such a rollover or plan-to-plan transfer is
made from this Plan, it will not be considered as a distribution for purposes of
this Section. If such a rollover or plan-to-plan transfer is made to this Plan,
it will be considered as part of the Participant's Single Sum Benefit.
(g) PRESENT VALUE OF ACCRUED BENEFIT
In the case of a defined benefit plan, a Participant's Present Value of Accrued
Benefit, for Top-Heavy determination purposes, will be determined using the
following rules:
(1) The Present Value of Accrued Benefit will be determined as of the most
recent "valuation date" within a 12-month period ending on the Determination
Date.
(2) For the first Plan Year, the Present Value of Accrued Benefit will be
determined as if (A) the Participant terminated service as of the Determination
Date; or (B) the Participant terminated service as of the valuation
date, but taking into account the estimated Present Value of Accrued
Benefits as of the Determination Date.
(3) For any other Plan Year, the Present Value of Accrued Benefit will be
determined as if the Participant terminated service as of the valuation date.
(4) The valuation date must be the same date used for computing the defined
benefit plan minimum funding costs, regardless of whether a calculation is
performed that plan year.
(5) A Participant's Present Value of Accrued Benefit as of a Determination Date
will be the sum of:
(A) the present value of his Accrued Benefit determined using the actuarial
assumptions which are specified below; plus
(B) any Plan Distributions made within the Plan Year that includes the
Determination Date or within the four preceding Plan Years; plus
(C) any employee contributions, whether voluntary or mandatory. However,
amounts attributable to qualified voluntary employee contributions, as
defined in Code Section 219(e)(2) will not be considered to be a part of the
Participant's Present Value of Accrued Benefit.
For purposes of this Section, the present value of a Participant's Accrued
Benefit will be equal to the greater of the present value determined using the
actuarial assumptions which are specified in the defined benefit plan or the
present value determined using the Applicable Interest Rate and the
Applicable Mortality Table.
The Applicable Interest Rate is the rate equal to the annual rate of
interest on 30-year Treasury securities for the month of November preceding
the first day of the year of distribution or such other time as the
Secretary of the Treasury may by regulations prescribe.
The Applicable Mortality Table is the table based on the mortality rates in
Revenue Ruling 95-6 or such other table as the Secretary of the Treasury may
later prescribe.
(6) Solely for the purpose of determining if this Plan (or any other plan
included in a Required Aggregation Group of which this Plan is a part) is
Top-Heavy, the Accrued Benefit of any Employee other than a Key Employee will
be determined under
(A) the method, if any, that uniformly applies for accrual purposes under
all plans maintained by the Employer or any Related Employer, or
(B) if there is no such method, as if the benefit accrued no more rapidly
than the slowest accrual rate permitted under the fractional accrual rate
of Code Section 411(b)(1)(C).
(h) SINGLE SUM BENEFIT
The Single Sum Benefit for any Participant in a defined benefit pension plan
will be equal to his Present Value of Accrued Benefit. The Single Sum Benefit
for any Participant in a defined contribution plan will be equal to his
Aggregate Account.
(i) TOP-HEAVY GROUP
Top-Heavy Group means an Aggregation Group in which, as of the Determination
Date, the Single Sum Benefits of all Key Employees under all plans included in
the group exceeds 60% of a similar sum determined for all Participants.
Super Top-Heavy Group means an Aggregation Group in which, as of the
Determination Date, the sum of (1) the Single Sum Benefits of all Key Employees
under all defined benefit plans included in the group, plus (2) the Single Sum
Benefit of all Key Employees under all defined contribution plans included in
the group exceeds 90% of a similar sum determined for all Participants.
(j) TOP-HEAVY PLAN
This Plan will be a Top-Heavy Plan for any Plan Year beginning after December
31, 1983, in which, as of the Determination Date, the Single Sum Benefits of all
Key Employees exceed 60% of the Single Sum Benefits of all Participants under
this Plan.
This Plan will be a Super Top-Heavy Plan for any Plan Year beginning after
December 31, 1983, in which, as of the Determination Date, the Single Sum
Benefits of all Key Employees exceed 90% of the Single Sum Benefits of all
Participants under this Plan.
If any Participant is a Non-Key Employee for a given Plan Year, but was a Key
Employee for any prior Plan Year, the Participant's Single Sum Benefit will not
be taken into account for purposes of determining whether this Plan is a
Top-Heavy or Super Top-Heavy Plan (or whether any Aggregation Group which
includes this Plan is a Top-Heavy or Super Top-Heavy Group).
If an individual has performed no services for the Employer at any time during
the 5-year period ending on the Determination Date, any Single Sum Benefit of
such individual will not be taken into account for purposes of determining
whether this Plan is a Top-Heavy or Super Top-Heavy Plan (or whether any
Aggregation Group which includes this Plan is a Top-Heavy Group or Super
Top-Heavy Group).
12.02 MINIMUM BENEFIT FOR A TOP-HEAVY PLAN
(a) MINIMUM ALLOCATION TO A DEFINED CONTRIBUTION PLAN
Notwithstanding anything contained herein to the contrary, for any Plan Year in
which this Plan is determined to be Top-Heavy, a Participant who is a Non-Key
Employee (including any Employee who is excluded from the Plan because his
Compensation is less than a stated amount) will be entitled to a minimum
allocation of Employer contributions plus any reallocated Forfeitures, in
addition to any Matching Contributions allocated under the Plan, equal to
3% of the Non-Key Employee's Compensation received during the Plan Year while
a Participant in the Plan. This minimum allocation will be deposited to the
Participant's Account specified by the Plan Administrator, will be subject
to the vesting and distribution rules pertaining to the Account to which it
is deposited, and will be provided to each Non-Key Employee who is a Participant
and is employed by the Employer on the last day of the Plan Year whether or
not he or she is an otherwise eligible Participant or fails to make any
mandatory Employee contribution to the Plan.
The percentage referred to in the preceding paragraph will not exceed the
percentage of Compensation at which Elective Contributions to a Cash or Deferred
Arrangement and Employer contributions are made or allocated to the Key Employee
for whom such percentage is the largest; provided, however, this sentence will
not apply if the Plan is required to be included in an Aggregation Group to meet
the requirements of Code Sections 401(a)(4) or 410(b).
For any Plan Year, the minimum allocation required under this Section will be
reduced by any other contributions made by the Employer which may be taken into
account in satisfying the requirements of Code Section 416(c)(2). However,
neither Elective Contributions to a Cash or Deferred Arrangement nor Matching
Contributions for Non-Key Employees will be taken into account in satisfying the
requirements of Code Section 416(c)(2).
(b) MINIMUM ACCRUED BENEFIT UNDER A DEFINED BENEFIT PLAN
In lieu of the foregoing, the requirements of Code Section 416(c) will be
satisfied in any Plan Year in which a Non-key Employee is a Participant in both
this Plan and a defined benefit pension plan included in a Required Aggregation
Group which is top-heavy if the Participant is entitled to a minimum accrued
benefit under the defined benefit plan equal to the greater of (1) the accrued
benefit provided under the defined benefit plan or (2) a monthly benefit in the
form of a straight life annuity (with no ancillary benefits) beginning at normal
retirement date equal to the Participant's average monthly compensation (which
means the average rate of Compensation during the five consecutive years, as
defined for purposes of determining average monthly compensation, in which the
Participant had the highest Compensation) multiplied by the lesser of (1) 2% for
each year of benefit service performed while actually participating in the plan
during a Plan year in which the plan is determined to be Top-Heavy, or (2) 20%.
The defined benefit plan may not satisfy this requirement through Employer
contributions to Social Security.
12.03 MINIMUM VESTING SCHEDULE FOR A TOP-HEAVY PLAN
In any Plan Year in which the Plan is determined to be a Top-Heavy Plan, a
Participant's Vested Accrued Benefit for Employer contributions credited during
that Plan Year will be the greater of the Vested Accrued Benefit determined by
applying the Vesting Schedule provided in Article 1 or the Vested Accrued
Benefit determined by applying the following Vesting Schedule:
YEARS OF SERVICE VESTED PERCENTAGE
Less than 2 Years 0%
----------------- ----
2 Years 20%
----
3 Years 40%
----
4 Years 60%
----
5 Years 80%
----
6 Years or More 100%
----------------- ----
The minimum vesting requirements of this Article will apply to all Accounts of a
Participant that include contributions subject to the Minimum Vesting Schedule
for a Top-Heavy Plan.
If in any subsequent Plan Year the Plan ceases to be a Top-Heavy Plan, the
minimum vesting requirements of this Article will continue to apply to all
Accounts of the Participant that include contributions subject to the Minimum
Vesting Schedule for a Top-Heavy Plan.
ARTICLE 13
TRUSTEE AND TRUST FUND
13.01 ACCEPTANCE OF TRUST
The Trustee, by signing this Agreement, accepts this Trust and agrees to perform
the duties of the Trustee in accordance with the terms and conditions set forth
herein.
13.02 TRUST FUND
(a) PURPOSE AND NATURE
The Trustee will establish and maintain a Trust Fund for purposes of providing a
means of accumulating the assets necessary to provide the benefits which become
payable under the Plan. The Trustee will receive, hold and invest all
contributions made by the Employer, any Participating Employers, and the
Participants, including the investment earnings thereon. The Trust Fund arising
from such contributions and earnings will consist of all assets held by the
Trustee under the Plan and Trust. All benefits payable under the Plan will be
paid by the Trustee from the Trust Fund.
Any person having any claim under the Plan will look solely to the assets of the
Trust Fund for satisfaction. In no event will the Plan Administrator, the
Employer, any Employees, any officer of the Employer or any agents of the
Employer or the Plan Administrator be liable in their individual capacities to
any person whomsoever, under the provisions of this Plan and Trust, except as
provided by law.
The Trust Fund will be used and applied only in accordance with the provisions
of the Plan and Trust, to provide the benefits thereof, and no part of the
corpus or income of the Trust Fund will be used for, or diverted to, purposes
other than for the exclusive benefit of the Participants or their Beneficiaries
entitled to benefits under the Plan, except to the extent specifically provided
elsewhere herein.
(b) OPERATION OF TRUST FUND
The Trust Fund will be maintained in accordance with the accounting requirements
of the Plan. No Participant will have any right to any specific asset or any
specific portion of the Trust Fund prior to distribution of benefits.
Withdrawals from the Trust Fund will be made to provide benefits to Participants
and Beneficiaries in the amounts specified by the Plan, and to pay expenses
agreed to in writing by the Plan Administrator.
(c) INVESTMENTS
The Trustee will invest the Trust Fund in accordance with the proper directions
of the Plan Administrator or Investment Manager.
(d) PLAN SPONSOR DIRECTION OF INVESTMENT
The Plan Sponsor will have the right to direct the Trustee with respect to the
investment and reinvestment of assets comprising the Trust Fund. The Trustee
and the Plan Sponsor (or the Plan Administrator or an Investment Committee
appointed by the Plan Sponsor) will execute a letter of agreement as a part of
this Plan containing such conditions, limitations and other provisions they deem
appropriate before the Trustee will follow any Plan Sponsor direction with
respect to the investment or reinvestment of any part of the Trust Fund. Such
letter of agreement may provide for Participant direction with respect to the
investment and reinvestment of a Participant's Accounts in accordance with
Article 4.
(e) OTHER PLANS WITH ASSETS IN THE TRUST FUND
If the Plan Sponsor creates or maintains one or more employee benefit plans
qualified under Code Section 401(a) in addition to this Plan, the Plan Sponsor
may request the Trustee to hold the assets of the additional plan or plans in
the Trust Fund. The Plan Administrator will keep records showing the interest
of the Plan and each additional plan in the Trust Fund unless the Trustee enters
into an agreement with the Plan Sponsor to keep separate records for each such
plan. The Plan Sponsor and the Plan Administrator will not permit or cause the
assets of one plan to be used to pay benefits or the administrative expenses of
any other plan with assets in the Trust Fund.
13.03 RECEIPT OF CONTRIBUTIONS
The Trustee will be accountable to the Employer for the funds contributed to it,
but will have no duty to see that the contributions received comply with the
provisions of the Plan. The Trustee will not be obligated to collect any
contributions from the Employer or the Participants.
13.04 POWERS OF THE TRUSTEE
The Trustee's authority and discretion with respect to the Trust Fund will at
all times be subject to the proper written directions of the Plan Administrator
or Investment Manager. The Trustee is authorized and empowered, but not by way
of limitation, with the following powers, rights and duties:
(a) To invest any part or all of the Trust Fund in any common or preferred
stocks, open-end or closed-end mutual funds, United States retirement plan
bonds, corporate bonds, debentures, convertible debentures, commercial paper,
U.S. Treasury bills, book entry deposits with the United States Federal
Reserve Bank or System, Master Notes or similar arrangements sponsored by the
Trustee or any other financial institution as permitted by law, improved or
unimproved real estate situated in the United States, mortgages, notes or other
property of any kind, real or personal, as a prudent man would so
invest under like circumstances with due regard for the purposes of this
Plan;
(b) To maintain any part of the assets of the Trust Fund in cash, or in
demand or short-term time deposits bearing a reasonable rate of interest
(including demand or short-term time deposits of or with the Trustee), or in a
short-term investment fund or in other cash equivalents having ready
marketability, including, but not limited to, U.S. Treasury Bills, commercial
paper, certificates of deposit (including such certificates of deposit of or
with the Trustee), and similar types of short-term securities, as may be deemed
necessary by the Trustee in its sole discretion;
(c) To manage, sell, contract to sell, grant options to purchase, convey,
exchange, transfer, abandon, improve, repair, insure, lease for any term even
though commencing in the future or extending beyond the term of the Trust, and
otherwise deal with all property, real or personal, in such manner, for such
considerations and on such terms and conditions as the Trustee will decide;
(d) To credit and distribute the Trust as directed by the Plan Administrator
or any agent of the Plan Administrator. The Trustee will not be obliged to
inquire as to whether any payee or distributee is entitled to any payment or
whether the distribution is proper or within the terms of the Plan, or as to the
manner of making any payment or distribution. The Trustee will be accountable
only to the Plan Administrator for any payment or distribution made by it in
good faith on the order or direction of the Plan Administrator or any agent of
the Plan Administrator;
(e) To borrow money, assume indebtedness, extend mortgages and encumber by
mortgage or pledge;
(f) To compromise, contest, arbitrate, or abandon claims and demands, in its
discretion;
(g) To have with respect to the Trust all of the rights of an individual
owner, including the power to give proxies, to participate in any voting trusts,
mergers, consolidations or liquidations, and to exercise or sell stock
subscriptions or conversion rights;
(h) To hold any securities or other property in the name of the Trustee or
its nominee, or in another form as it may deem reasonable, with or without
disclosing the trust relationship;
(i) To perform any and all other acts in its judgment necessary or
appropriate for the proper and advantageous management, investment and
distribution of the Trust;
(j) To compromise, arbitrate, or otherwise adjust or settle claims in favor
of or against the Trust and to deliver or accept consideration in either total
or partial satisfaction of any indebtedness or other obligation, and to continue
to hold property so received for the period of time that the Trustee deems
appropriate;
(k) To file all tax forms or returns required of the Trustee;
(l) To begin, maintain or defend any litigation necessary in connection with
the administration of the Plan, except that the Trustee will not be obligated to
or required to do so unless indemnified to its satisfaction; and
(m) To keep any or all of the Trust property at any place or places within
the United States or abroad, or with a depository or custodian at such place or
places; provided, however, that the Trustee may not maintain the indicia of
ownership of any assets of the Plan outside the jurisdiction of the District
Courts of the United States, except as may be expressly authorized in U.S.
Treasury or U.S. Department of Labor regulations.
13.05 INVESTMENT IN COMMON OR COLLECTIVE TRUST FUNDS
Notwithstanding the provisions of Section 13.04, the Plan Sponsor specifically
authorizes the Trustee to invest all or any portion of the assets comprising the
Trust Fund in any common or collective trust fund which at the time of the
investment provides for the pooling of the assets of plans qualified under Code
Section 401(a). The authorization applies only if such common or collective
trust fund: (a) is exempt from taxation under Code Section 584 or 501(a); (b)
if exempt under Code Section 501(a), expressly limits participation to pension
and profit sharing trusts which are exempt under Code Section 501(a) by reason
of qualifying under Code Section 401(a); (c) prohibits that part of its corpus
or income which equitably belongs to any participating trust from being used for
or diverted to any purposes other than for the exclusive benefit of the
Employees or their Beneficiaries who are entitled to benefits under such
participating trust; (d) prohibits assignment by a participating trust of any
part of its equity or interest in the group trust; and (e) the sponsor of the
group trust created or organized the group trust in the United States and
maintains the group trust at all times as a domestic trust in the United States.
The provisions of the common or collective trust fund agreement, as amended by
the Trustee from time to time, are by this reference incorporated within this
Plan and Trust. The provisions of the common or collective trust fund will
govern any investment of Plan assets in that fund. This provision constitutes
the express permission required by Section 408(b)(8) of ERISA.
13.06 INVESTMENT IN INSURANCE COMPANY CONTRACTS
The Trustee may invest any portion of the Trust Fund in a deposit
administration, guaranteed investment or similar type of investment contract
(hereinafter referred to as Contract); provided, however, that no such Contract
may provide for an optional form of benefit which would not be provided for
under the provisions hereof. The Trustee will be the complete and absolute
owner of Contracts held in the Trust Fund.
The Trustee may convert from one form to another any Contract held in the Trust
Fund; designate any mode of settlement; sell or assign any Contract held in the
Trust Fund; surrender for cash any Contract held in the Trust Fund; agree with
the insurance company issuing any Contract to any release, reduction,
modification or amendment thereof; and, without limitation of any of the
foregoing, exercise any and all of the rights, options and privileges that
belong to the absolute owner of any Contract held in the Trust Fund that are
granted by the terms of any such Contract or by the terms of this Agreement.
The Trustee will hold in the Trust Fund the proceeds of any sale, assignment or
surrender of any Contract held in the Trust Fund and any and all dividends and
other payments of any kind received in respect to any Contract held in the Trust
Fund.
13.07 FEES AND EXPENSES FROM FUND
The Trustee will be entitled to receive reasonable annual compensation as may be
mutually agreed upon from time to time between the Plan Sponsor and the Trustee.
The Trustee will pay all expenses reasonably incurred by it in its
administration and investment of the Trust Fund from the Trust Fund unless the
Plan Sponsor pays the expenses. No person who is receiving full pay from the
Plan Sponsor will receive compensation for services as Trustee.
13.08 RECORDS AND ACCOUNTING
The Trustee will keep full and complete records of the administration of the
Trust Fund which the Plan Sponsor and the Plan Administrator may examine at any
reasonable time. As soon as practical after the end of each Plan Year and at
such other reasonable times as the Plan Sponsor may direct, the Trustee will
prepare and deliver to the Plan Sponsor and the Plan Administrator an accounting
of the administration of the Trust, including a report on the fair market value
of all assets of the Trust Fund.
13.09 DISTRIBUTION DIRECTIONS
If no one claims a payment or distribution made from the Trust, the Trustee will
notify the Plan Administrator and will dispose of the payment in accordance with
the subsequent written direction of the Plan Administrator.
13.10 THIRD PARTY
No person dealing with the Trustee will be obliged to see to the proper
application of any money paid or property delivered to the Trustee, or to
inquire whether the Trustee has acted pursuant to any of the terms of the Plan.
Each person dealing with the Trustee may act upon any notice, request or
representation in writing by the Trustee, or by the Trustee's duly authorized
agent, and will not be liable to any person whomsoever in so doing. The
certification of the Trustee that it is acting in accordance with the Plan will
be conclusive in favor of any person relying on the certification.
13.11 PROFESSIONAL AGENTS, AFFILIATES AND ARBITRATION.
(a) PROFESSIONAL AGENTS
The Trustee may employ and pay from the Trust Fund reasonable compensation to
agents, attorneys, accountants and other persons to advise the Trustee as in its
opinion may be necessary. The Trustee may delegate to any agent, attorney,
accountant or other person selected by it any non-Trustee power or duty vested
in it by the Plan; the Trustee may act or refrain from acting on the advice or
opinion of any agent, attorney, accountant or other person so selected.
(b) USE OF AFFILIATES
Charles Schwab Trust Company (CSTC) is authorized to contract or make other
arrangements with The Charles Schwab Corporation, Charles Schwab & Co., Inc.,
their affiliates and subsidiaries, successors and assigns (collectively referred
to as Schwab), and any other organizations affiliated with or subsidiaries of
CSTC or related entities, for the provision of services to the Trust Fund or
Plan, except where such arrangements are prohibited by law or regulation. As
used below, authorized person means any person whose authorization is required
pursuant to the provision of any prohibited transaction exemption otherwise
applicable.
CSTC is authorized to place securities orders, settle securities trades, hold
securities in custody and other related activities on behalf of the Trust Fund
through or by Schwab whenever possible unless the authorized person specifically
instructs the use of another Broker. Trades and related activities conducted
through the Broker will be subject to fees and commissions established by the
Broker, which may be paid from the Trust Fund or netted from the proceeds of
trades.
Trades will not be executed through Schwab unless the Plan Administrator and the
authorized person have received disclosure concerning the relationship of Schwab
to CSTC, and the fees and commissions which may be paid to Schwab, CSTC and any
affiliate or subsidiary of any of them as a result of using Schwab to execute
trades or for other services.
CSTC is authorized to disclose such information as is necessary to the operation
and administration of the Trust Fund to Schwab and to such other persons or
organizations that CSTC determines have a legitimate business purpose for
obtaining such information.
At the direction of the authorized person, CSTC may purchase shares of regulated
investment companies (or other investment vehicles) advised by Schwab or CSTC
("Schwab Funds"), except to the extent that such investment is prohibited by law
or regulation. Schwab Fund shares may not be purchased for or held by the Trust
Fund unless the Plan Administrator has received disclosure concerning the
relationship of Schwab or CSTC to the Schwab Funds, and any fees which may be
paid to such entities.
To the extent permitted under applicable laws, CSTC may invest in deposits, long
and short term debt instruments, stocks and other securities, including those of
CSTC or Schwab.
CSTC and Schwab are authorized to tape record conversations between CSTC or
Schwab and persons acting on behalf of the Plan or a Participant in order to
verify data on transactions.
(c) ARBITRATION
Any dispute under this agreement by and between the Trustee and the Plan Sponsor
will be resolved by submission of the issue to a member of the American
Arbitration Association who is chosen by the Plan Sponsor and the Trustee. If
the Plan Sponsor and the Trustee cannot agree on such a choice, each will
nominate a member of the American Arbitration Association, and the two nominees
will then select an arbitrator. Expenses of the arbitration will be paid as
decided by the arbitrator. This paragraph will not be interpreted to diminish
any rights a Participant may have under ERISA.
13.12 VALUATION OF TRUST
The Trustee will value the Trust Fund as of the last day of each Plan Year to
determine the fair market value of the Trust, and the Trustee will value the
Trust Fund on such other date(s) as may be necessary to carry out the provisions
of the Plan.
13.13 LIABILITY OF TRUSTEE
The Trustee will be liable only for the safeguarding and administration of the
assets of this Trust Fund in accordance with the provisions hereof and any
amendments hereto and no other duties or responsibilities will be implied. The
Trustee will not be required to pay any interest on funds paid to or deposited
with it or to its credit under the provisions of this Trust, unless pursuant to
a written agreement between the Plan Sponsor and the Trustee. The Trustee will
not be responsible for the adequacy of the Trust Fund to meet and discharge any
liabilities under the Plan and will not be required to make any payment of any
nature except from funds actually received as Trustee.
The Trustee may consult with legal counsel (who may be legal counsel for the
Plan Sponsor) selected by the Trustee and the opinion of such counsel, when
relied upon by the Trustee, will be evidence that the Trustee was acting in good
faith.
It will not be the duty of the Trustee to determine the identity or mailing
address of any Participant or any other person entitled to benefits hereunder,
such identity and mailing addresses to be furnished by the Plan Sponsor, the
Plan Administrator or an agent of the Plan Administrator.
The Trustee will be under no liability in making payments in accordance with the
terms of this Plan and the certification of the Plan Administrator or an agent
of the Plan Administrator who has been granted such powers by the Plan
Administrator.
Except to the extent required by any applicable law, no bond or other security
for the faithful performance of duty hereunder will be required of the Trustee.
13.14 REMOVAL OR RESIGNATION AND SUCCESSOR TRUSTEE
A Trustee may resign at any time upon giving 30 days prior written notice to the
Plan Sponsor or, with the consent of the Plan Sponsor, a Trustee may resign with
less than 30 days prior written notice.
The Plan Sponsor may remove a Trustee by giving at least 30 days prior written
notice to the Trustee.
Upon the removal or resignation of a Trustee, the Plan Sponsor will appoint and
designate a successor Trustee which will be one or more individual successor
Trustees or a corporate Trustee organized under the laws of the United Sates or
of any state thereof with authority to accept and execute trusts. Any successor
Trustee must accept and acknowledge in writing its appointment as a successor
Trustee before it can act in such capacity.
Title to all property and records or true copies of such records necessary to
the current operation of the Trust Fund held by the Trustee hereunder will vest
in any successor Trustee acting pursuant to the provisions hereof, without the
execution or filing of any further instrument. Any resigning or removed Trustee
will execute all instruments and do all acts necessary to vest such title in any
successor Trustee of record. Each successor Trustee will have, exercise and
enjoy all the powers, both discretionary and ministerial, herein conferred upon
his predecessor. No successor Trustee will be obligated to examine the
accounts, records and acts of any previous Trustee or Trustees, and each
successor Trustee in no way or manner will be responsible for any action or
omission to act on the part of any previous Trustee.
Any corporation which results from any merger, consolidation or purchase to
which the Trustee may be a party, or which succeeds to the trust business of the
Trustee, or to which substantially all the trust assets of the Trustee may be
transferred, will be the successor to the Trustee hereunder without any further
act or formality with like effect as if the successor Trustee had originally
been named Trustee herein; and in any such event it will not be necessary for
the Trustee or any successor Trustee to give notice thereof to any person, and
any requirement, statutory or otherwise, that notice will be given is hereby
waived.
13.15 APPOINTMENT OF INVESTMENT MANAGER
One or more Investment Managers may be appointed by the Plan Sponsor (or the
Plan Administrator) to exercise full investment management authority with
respect to all or a portion of the Trust assets. Authorized payment of the fees
and expenses of the Investment Manager(s) may be made from the Trust assets.
For purposes of this agreement, any Investment Manager so appointed will, during
the period of his appointment, possess fully and absolutely those powers, rights
and duties of the Trustee (to the extent delegated in writing by the Plan
Sponsor or the Plan Administrator) with respect to the investment or
reinvestment of that portion of the Trust assets over which the Investment
Manager has investment management authority. The Investment Manager must be one
of the following:
(a) Registered as an investment advisor under the Investment Advisors Act of
1940;
(b) A bank, as defined in the Investment Advisors Act of 1940; or
(c) An insurance company qualified to manage, acquire, or dispose of such
Plan assets under the laws of more than one state.
Any Investment Manager will acknowledge in writing to the Plan Sponsor or the
Plan Administrator and to the Trustee that he or it is a fiduciary with respect
to the Plan. During any period of time when the Investment Manager is so
appointed and serving, and with respect to those assets in the Plan over which
the Investment Manager exercises investment management authority, the Trustee's
responsibility will be limited to holding such assets as a custodian, providing
accounting services, disbursing benefits as authorized, and executing such
investment instructions only as directed by the Investment Manager. The Trustee
will not be responsible for any acts or omissions of the Investment Manager.
Any certificates or other instruments duly signed by the Investment Manager (or
the authorized representative of the Investment Manager), purporting to evidence
any instruction, direction or order of the Investment Manager with respect to
the investment of those assets of the Plan over which the Investment Manager has
investment management authority, will be accepted by the Trustee as conclusive
proof thereof. The Trustee will also be fully protected in acting in good faith
upon any notice, instruction, direction, order, certificate, opinion, letter,
telegram or other document believed by the Trustee to be genuine and from the
Investment Manager (or the authorized representative of the Investment Manager).
The Trustee will not be liable for any action taken or omitted by the Investment
Manager or for any mistakes of judgment or other action made, taken or omitted
by the Trustee in good faith upon direction of the Investment Manager.
13.16 EMPLOYER STOCK
(a) TYPE OF EMPLOYER STOCK
The Trustee will, to the extent practical based on the Participant's election,
invest that portion of the Trust fund so elected by a Participant, in common
stock of the Employer or any Participating Employer (Employer Stock) which
includes treasury stock which has been purchased by the Employer. The
percentage of Plan assets invested in such Employer Stock will be such an amount
as directed by Participants, which may exceed 10% of the Plan's assets.
(b) VOTING RIGHTS
Voting rights with respect to shares of Employer Stock held in the Trust Fund
will be voted by the Trustee in such manner as may be determined by the
respective Participants, with respect to all matters requiring shareholder
approval.
The Trustee and the Employer will adopt reasonable measures to enable the
Employer to notify the Participants of the date and purpose of each meeting of
stockholders of the Employer at which holders of shares of Employer Stock will
be entitled to vote, and to request instructions from each Participant to the
Trustee as to the voting at such meeting of full shares of Employer Stock
(whether or not vested) in the Accounts of such Participant. The Trustee,
itself or by proxy, will vote full shares of Employer Stock in accordance with
the instructions of the Participant. If prior to the time of such meeting of
stockholders (or a date prior thereto specified by the Trustee) the Trustee will
not have received instructions from any Participant, the Trustee will have no
duty to make any decision or take any action regarding any such stock unless
otherwise instructed by the named fiduciary.
(c) TENDER OFFERS
Each Participant, or, in the event of his death, his Beneficiary, will have the
right, to the extent of the number of full shares of Employer Stock in his
account, to direct the Trustee in writing as to the manner in which to respond
to a tender or exchange offer with respect to shares of such Employer Stock.
The Employer will utilize its best efforts to timely distribute or cause to be
distributed to each Participant (or Beneficiary) such information as will be
distributed to shareholders of the Employer in connection with any such tender
or exchange offer.
The Trustee will, with respect to Employer Stock held in the Trust Fund, accept
or reject the terms of any tender offer and, accordingly, tender Employer Stock
held by the Trustee in the Trust Fund in accordance with the terms and
provisions of any tender offer, or not tender such Employer Stock, as directed
by the respective Participants. With respect to full shares of Employer Stock
which are allocated to Participants who have not given directions, the Trustee
will not tender any shares of Employer Stock with respect to which such
Participants (or Beneficiaries) have the right of direction.
The sum of fractional shares allocated to Participants' Accounts and unallocated
shares of Employer Stock will be tendered or exchanged in the same manner and
proportion as shares with respect to which Participants have the right of
direction are tendered or exchanged.
The Plan Administrator may establish such rules and guidelines as it deems
appropriate to properly effect the provisions of this Section.
IN WITNESS WHEREOF, this instrument has been executed by the duly authorized and
empowered officers of the Plan Sponsor, this ________ day of
_____________________, 2000.
TRITON EXPLORATION SERVICES, INC.
By:_______________________________________
The Trustee agrees to serve as Trustee under the terms of this instrument.
THE CHARLES SCHWAB TRUST COMPANY
By:_______________________________________